Opinion
Civil Action No. 04-3319-CM.
February 22, 2005
MEMORANDUM AND ORDER
Plaintiff filed the instant lawsuit pursuant to 42 U.S.C. 1983, asserting that defendant violated his First Amendment Right to free speech. Specifically, plaintiff claims that defendant issued a disciplinary report for retaliatory reasons. This matter is before the court on defendant's Motion to Dismiss (Doc. 19). The court notes that plaintiff had filed a Motion for Default Judgment (Doc. 13), but then filed a Motion to Withdraw Motion for Default Judgment (Doc. 21). Accordingly, the court grants plaintiff's Motion to Withdraw Motion for Default Judgment (Doc. 21), thereby rendering plaintiff's Motion for Default Judgment (Doc. 13) moot.
I. Standard
A district court may not dismiss a case for failure to state a claim "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Sutton v. Utah State Sch. for Deaf Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (quotation omitted). All reasonable inferences must be considered in favor of the plaintiff, and pro se pleadings are to be liberally construed. Perkins v. Kan. Dep't of Corr., 165 F.3d 803, 806 (10th Cir. 1999).
II. Facts
Plaintiff is an inmate at the El Dorado Correctional Facility. Defendant is a correctional officer at the facility. Plaintiff alleges in his complaint that, on August 20, 2004, he witnessed the defendant threatening and intimidating another inmate. On August 21, 2004, plaintiff provided the inmate with a sworn affidavit, attesting to what plaintiff had witnessed. The inmate then filed a grievance, and attached plaintiff's affidavit in support.
On August 26, 2004, defendant received the grievance, along with the attached sworn affidavit. Plaintiff contends that defendant responded in retaliation by filing a disciplinary report against plaintiff. The disciplinary report charged plaintiff with "unauthorized presence," stating that plaintiff was out of his assigned cell house and in an area in which plaintiff was not authorized to be at the time he purportedly witnessed the event on August 20, 2004.
On September 9, 2004, a disciplinary hearing was held. Plaintiff presented a statement from Activity Therapist Looper, indicating that plaintiff had been to the law library with a pass at the time the alleged violation of unauthorized presence took place. The disciplinary report was dismissed.
Plaintiff also alleges that, soon after the disciplinary report was issued, plaintiff's cell was searched.
III. Discussion
Pursuant to the Prison Litigation Reform Act of 1995, prisoners bringing suit under § 1983 must first exhaust available administrative remedies before seeking relief in federal court. 42 U.S.C. § 1997e(a) ("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."). Full exhaustion of available remedies is required regardless of the nature of the relief sought. Booth v. Churner, 532 U.S. 731, 741 (2001). Moreover, 42 U.S.C. § 1997e(a) requires inmates to exhaust available administrative remedies prior to filing an action under § 1983, even where the "available remedies appear futile at providing the kind of remedy sought." Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). In a § 1983 action, the burden is on an inmate to sufficiently plead exhaustion of grievance proceedings, which includes supplying supporting information or documentation on exhaustion of prison grievance proceedings. Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1209-10 (10th Cir. 2003).
Defendant in this case did not argue as a basis for dismissal the fact that plaintiff did not exhaust administrative remedies. However, a district court can sua sponte dismiss a claim for failure to exhaust administrative remedies. Edmond v. Corr. Corp. of Am., 161 F.3d 17 (10th Cir. 1998) (affirming district court's sua sponte dismissal for failure to exhaust administrative remedies through the prison grievance process).
In this case, plaintiff alleges that his First Amendment right to free speech was violated when defendant issued a disciplinary report and when plaintiff's cell was searched. Plaintiff contends that these acts were done in retaliation for his written statement about the events that occurred in August 20, 2004. However, it is clear from plaintiff's complaint and the Martinez report that plaintiff never filed a grievance complaining of the alleged retaliation. Plaintiff alleges that he attempted to talk to defendant about the disciplinary report, but plaintiff never grieved his retaliation complaint. As such, the court dismisses plaintiff's complaint for failure to exhaust administrative remedies. IT IS THEREFORE ORDERED that defendant's Motion to Dismiss (Doc. 19) is granted.
The court likely would have dismissed plaintiff's claims on the merits had it further considered the matter. Because the disciplinary report was promptly withdrawn, this case is similar to Love v. Scrivner, 2004 WL 2029328, at *2 (D. Kan. 2004), wherein the court held that a threat to fire an inmate from the law library if the inmate further complained was not actionable under the First Amendment where the threat was withdrawn and apologized for. As pointed out in Love, a plaintiff must demonstrate an injury which would be one that "would chill a person of ordinary firmness from continuing to engage in that activity." Id. (citations omitted). Here, based upon the allegations in the complaint, plaintiff's First Amendment rights were neither objectively or subjectively violated.