Opinion
No. C00-3039-MWB.
January 5, 2001.
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS
TABLE OF CONTENTS
I. INTRODUCTION II. STANDARDS FOR MOTION TO DISMISS III. MATERIAL FACTS IV. LEGAL ANALYSIS A. Overview of Civil Rights Claims Under 42 U.S.C. § 1983 B. Exhaustion Requirements Under 42 U.S.C. § 1997e V. CONCLUSION I. INTRODUCTION
This matter is before the court pursuant to the defendants' motion (Doc. No. 10), filed August 21, 2000, seeking to dismiss this 42 U.S.C. § 1983 action. The plaintiff Jeremy Van Hauen ("Van Hauen") filed a resistance to the motion on September 20, 2000 (Doc. No. 14). By order dated August 15, 2000, this matter was referred to the undersigned United States Magistrate Judge for the issuance of a report and recommended disposition, pursuant to 28 U.S.C. § 6369b)(1)(B). (Doc. No. 8)
In his complaint, Van Hauen claims the defendants failed to protect him from harm by other inmates while he was incarcerated in the Fort Dodge Correctional Facility. Van Hauen seeks compensatory and punitive damages, attorney fees, and costs of this action.
The defendants assert Van Hauen has failed to his exhaust administrative remedies as required by 42 U.S.C. § 1997e, mandating dismissal of this action for lack of subject matter jurisdiction (citing Fed.R.Civ.P. 12(b)(1)), and failure to state a claim for which relief may be granted (citing Fed.R.Civ.P. 12(b)(6)). Van Hauen contends he is not required to exhaust administrative remedies when the available procedure cannot provide a remedy for the harm he has suffered.
II. STANDARDS FOR MOTION TO DISMISS
A motion to dismiss may be made, inter alia, for "failure to state a claim upon which relief may be granted." Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss, the court must assume all the facts alleged in the complaint are true, and the complaint must be liberally construed in the light most favorable to the plaintiff. Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir. 1982)). In treating the factual allegations of a petition as true pursuant to Rule 12(b)(6), a court "do[es] not, however, blindly accept the legal conclusions drawn by the pleader from the facts." Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990) (citing Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987); 5 C. Wright A. Miller, Federal Practice and Procedure § 1357, at 595-97 (1969)); see also LRL Props. v. Portage Metro Housing Auth., 55 F.3d 1097, 1103 (6th Cir. 1995) (the court "need not accept as true legal conclusions or unwarranted factual inferences," quoting Morgan, supra.). Under Rule 12(b)(6), Federal Rules of Civil Procedure, dismissal is appropriate "only if it is clear that no relief can be granted under any set of facts that could be proved consistent with the allegations." Alexander v. Peffer, 993 F.2d 1348, 1349 (8th Cir. 1993) (quoting Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) (citing Conley)).
III. MATERIAL FACTS
Van Hauen was incarcerated in the Fort Dodge Correctional Facility during the time relevant to the facts at issue in this action. On July 28, 1999, fellow inmate Gerald Hildebrandt violently assaulted Van Hauen. On August 5 and 7, 1999, Van Hauen asked two correctional officers to move him to a cell away from inmate Hildebrandt. On August 7, 1999, Van Hauen again was assaulted by Hildebrandt.
Van Hauen brings this action against the Warden of the facility, John A. Thalacker, and security director David Castello, contending "[t]he security personnel hired by Defendants, and each of them, were hired without adequate training or supervision to protect Plaintiff from repeated physical attacks by inmate Gerald Hildebrandt." (Doc. No. 1, p. 3)
Van Hauen has not asserted in his pleadings what administrative remedies, if any, he has exhausted prior to filing this his claim.
IV. LEGAL ANALYSIS A. Overview of Civil Rights Claims Under 42 U.S.C. § 1983
Title 42 U.S.C. § 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Section 1983 was designed to provide a "broad remedy for violations of federally protected civil rights." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 685, 98 S.Ct. 2018, 2033, 56 L.Ed.2d 611 (1978). However, section 1983 provides no substantive rights. Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 811, 127 L.Ed.2d 114 (1994); Graham v. Conner, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 1870, 104 L.Ed.2d 443 (1989); Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617, 99 S.Ct. 1905, 1916, 60 L.Ed.2d 508 (1979). "One cannot go into court and claim a `violation of § 1983' — for § 1983 by itself does not protect anyone against anything." Chapman, 441 U.S. at 617, 99 S.Ct. at 1916. Rather, section 1983 provides a remedy for violations of all "rights, privileges, or immunities secured by the Constitution and laws [of the United States]." 42 U.S.C. § 1983; see Albright, 510 U.S. at 271, 114 S.Ct. at 811 (section 1983 "merely provides a method for vindicating federal rights elsewhere conferred"); Graham, 490 U.S. at 393-94, 109 S.Ct. at 1870 (same); Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 2504, 65 L.Ed.2d 555 (1980) ("Constitution and laws" means section 1983 provides remedies for violations of rights created by federal statute, as well as those created by the Constitution).
To state a claim under 42 U.S.C. § 1983, Van Hauen must establish two essential elements: (1) the violation of a right secured by the Constitution or laws of the United States, and (2) the alleged deprivation was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55, 101 L.Ed.2d 40 (1988); Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 330, 106 S.Ct. 662, 664, 88 L.Ed.2d 662 (1986).
B. Exhaustion Requirements Under 42 U.S.C. § 1997e
Title 42 U.S.C. § 1997e, as amended by the Prison Litigation Reform Act of 1996 provides, in relevant part:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
Pub.L. 104-134, § 101, 110 Stat. 1321 (1996). Prior to this amendment, prisoners filing claims under 42 U.S.C. § 1983 generally were not required to exhaust their administrative remedies.
While the defendants are correct in noting section 1997e mandates exhaustion of administrative remedies, they are incorrect in asserting the exhaustion requirement is jurisdictional. A prisoner's failure to exhaust such remedies does not deprive a federal court of subject matter jurisdiction. Chelette v. Harris, 229 F.3d 684, 686 (8th Cir. 2000). As the Eighth Circuit explained:
The Chelette court noted "[t]hose circuits that have considered the issue have concluded that the exhaustion requirement is not jurisdictional." 229 F.3d at 687 (citing, inter alia, Nyhuis v. Reno, 204 F.3d 65, 69 n. 4 (3d Cir. 2000) ("[W]e agree with the clear majority of courts that section 1997e(a) is not a jurisdictional requirement, such that failure to comply with the section would deprive federal courts of subject matter jurisdiction."); Rumbles v. Hill, 182 F.3d 1064, 1066 (9th Cir. 1999) (failure to exhaust administrative remedies under section 1997e(a) does not deprive a federal court of subject matter jurisdiction where money damages are the sole relief sought and are not available through prison grievance procedures); Perez v. Wisconsin Dep't. of Corrections, 182 F.3d 532, 535 (7th Cir. 1999) ("Failure to exhaust administrative remedies does not deprive a court of jurisdiction."); Underwood v. Wilson, 151 F.3d 292, 294 (5th Cir. 1998) (the language of § 1997e(a) ". . . is exactly the kind of language held in Weinberger v. Salfi, [ 422 U.S. 749, 757, 95 S.Ct. 2457, 2463, 45 L.Ed.2d 522 (1975),] not to limit federal jurisdiction")).
Rather, the language "[n] o action shall be brought . . . until such administrative remedies as are available are exhausted" governs the timing of the action, indicating "`merely that only those actions shall be brought in which administrative remedies have been exhausted.'" [ Wright v. Morris, 111 F.3d 414, 421 (6th Cir. 1997) (quoting Weinberger v. Salfi, 422 U.S. 749, 757, 95 S.Ct. 2457, 2463, 45 L.Ed.2d 522 (1975)).] To interpret section 1997e(a) as jurisdictional would collapse the Supreme Court's distinction between jurisdictional prerequisites and mere codifications of administrative exhaustion requirements. See id.
Chelette, 229 F.3d at 687. The Chelette court noted "other subsections of section 1997e indicate that exhaustion is not a jurisdictional requirement." Id. (citing Nyhuis v. Reno, 204 F.3d 65, 69 n. 4 (3d Cir. 2000)). Accordingly, the defendants' motion must fail on their Rule 12 (b)(l) argument.
Having determined subject matter jurisdiction exists, the court must address whether Van Hauen's complaint states a claim for which relief may be granted, in the absence of evidence that he has exhausted his administrative remedies. In McAlphin v. Morgan, 216 F.3d 680 (8th Cir. 2000), the Eighth Circuit affirmed the district court's dismissal without prejudice of a section 1983 complaint in which the plaintiff failed to allege full exhaustion of administrative remedies or to attach copies of available administrative dispositions. 216 F.3d at 682 (citing Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998) ( per curiam)). The court found the plaintiff had failed to meet his burden under 42 U.S.C. § 1997e (a), mandating dismissal of the complaint. McAlphin, 216 F.3d at 628 (citing Rivers-Frison v. Southeast Missouri Community Treatment Ctr., 133 F.3d 616, 619 n. 2 (8th Cir. 1998) ("[w]e will not allow a party to place an incomplete record before the district court and then, after correcting any deficiencies noted by that court, to complain of error on appeal")).
The Chelette court explained that finding subject matter jurisdiction exists is only the first step, "for once the defendants filed their motion to dismiss the court [is] obligated to proceed to determine whether in fact [the plaintiff has] exhausted his administrative remedies." 229 F.3d at 688 (citing Perez v. Wisconsin Dep't of Corrections, 182 F.3d 532, 535-36 (7th Cir. 1999)). The court held that where it is likely the plaintiff could avail himself of administrative procedures, such as filing a grievance, it can hardly be said that he exhausted such administrative remedies as were available to him. Section 1997e(a) says nothing about a prisoner's subjective beliefs, logical or otherwise, about the administrative remedies that might be available to him. The statute's requirements are clear: If administrative remedies are available, the prisoner must exhaust them. [The plaintiff] failed to do so, and so his complaint must be dismissed, for "we are not free to engraft upon the statute an exception that Congress did not place there." Castano v. Nebraska Dep't of Corrections, 210 F.3d 1023, 1035 (8th Cir. 2000).
Chelette, 229 F.3d at 688.
Similarly, this court is not free to "engraft upon the statute an exception that Congress did not place there" on the basis that the administrative procedures available to Van Hauen may not allow for the payment of money damages, or otherwise because he believes those procedures will provide an inadequate remedy.
Accordingly, the defendants' motion should be granted and this case should be dismissed without prejudice. IV. CONCLUSION
Van Hauen's reliance on Martin v. Catalanotto, 895 F.2d 1040 (5th Cir. 1990), is misplaced. Martin was decided on the basis of section 1197e as it existed prior to the 1996 amendments.
For the reasons discussion above, IT IS RECOMMENDED, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636 (b)(1)(C) and Fed.R.Civ.P. 72(b), within ten (10) days of the service of a copy of this report and recommendation, that the defendants' motion to dismiss be granted, and this case be dismissed without prejudice.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 475, 88 L.Ed.2d 435 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).