Thornton v. Warden et al

Filing 7

PRISCS-ORDER, Failure to provide a notice including current address and evidence of exhaustion within time provided will result in dismissal of this action. ( Dismissal due by 11/30/2012). Signed by Judge Joan G. Margolis on 11/9/2012. (Payton, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

DOUGLAS HENRY THORNTON
PRISONER CASE NO.
3:12-cv-760 (JBA)

v.
WARDEN, ET AL.
ORDER

The plaintiff, Henry Douglas Thornton, was incarcerated at
Bridgeport Correctional Center when he filed this civil rights
action pro se pursuant to 42 U.S.C. § 1983.

Department of

Correction records reflect that the plaintiff is no longer
incarcerated.1

On June 18, 2012, the court informed the

plaintiff that Local Rule 83.1(c)2 required him to notify the
court if his address changed at any time during the litigation of
the case.

The court cautioned the plaintiff that his failure to

notify the court of his change of address could result in
dismissal of his case.
Under 28 U.S.C. § 1915, the court may dismiss any portion of
the complaint that either “is frivolous, malicious, or fails to
state a claim upon which relief may be granted,” or “seeks
monetary relief from a defendant who is immune from such relief.”
Id.

Prisoners are required to exhaust their administrative

remedies before commencing an action in federal court and must

1

This information may be found at: http://www.ctinmateinfo.state.ct.us
(last visited November 6, 2012).

comply with all procedural rules regarding the grievance process.
See Woodford v. Ngo, 548 U.S. 81, 83-85 (2006).

Completion of

the exhaustion process after a federal action has been filed does
not satisfy the exhaustion requirement.

See Neal v. Goord, 267

F.3d 116, 122 (2d Cir. 2001).
Failure to exhaust administrative remedies is an affirmative
defense.

See Jones v. Bock, 549

U.S. 199, 216 (2007).

A court

may, however, dismiss a complaint for failure to state a claim
where the allegations on the face of the complaint establish that
it is subject to dismissal, even on the basis of an affirmative
defense.

See id. at 213-16 (acknowledging that court may dismiss

a complaint sua sponte where an affirmative defense is apparent
on the face of the complaint).
The timing of the events set forth in the complaint suggest
that plaintiff could not have fully exhausted his administrative
remedies prior to filing this lawsuit.

If that is true, the

complaint must be dismissed.
The plaintiff asserts that he is from Maryland and that he
entered Bridgeport Correctional Center on March 28, 2012.
Doc. No. 5.)

(See

He further alleges that Correctional Officers

confiscated his personal property and he was not been allowed to
attend the law library; the food was cold, dirty and unhealthy;
he was forced to sleep on the floor of the gym because of
overcrowding; the showers, medical treatment and medication were
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“poor”; and the facility was cold and he was not given a blanket.
The plaintiff seeks monetary damages and injunctive relief.

The administrative remedies for the State of Connecticut
Department of Correction are set forth in Administrative
Directive Chapter 9.6, entitled Inmate Administrative Remedies.
The Inmate Grievance Procedure provides an administrative remedy
for all matters subject to the Commissioner’s authority that are
not specifically identified in Sections 4(B) through 4(I) of the
directive.

The plaintiff’s claims regarding conditions of

confinement at Bridgeport Correctional are grievable pursuant to
Administrative Directive Chapter 9.6, Sections 4 and 6.

See

Administrative Directive Chapter 9.6, Sections 4(A) and 6(B),
www.ct.gov/doc/cwp/view.asp?a=1492&Q=450576&docNav=|.
Pursuant to Administrative Directive Chapter 9.6, an inmate
must first seek informal resolution of the issue prior to filing
a grievance.

The appropriate staff member should respond to the

written request within fifteen days of receipt of the request.
If informal resolution is unsuccessful or the staff member fails
to respond to the request in a timely manner, the inmate must
file a Level 1 grievance.

The Unit Administrator has thirty

business days from receipt of the grievance to respond to it.
the Level 1 grievance is denied or rejected or if the Unit
Administrator fails to timely respond to the grievance, the

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If

inmate must appeal the denial or failure to respond to Level 2.
A District Administrator must respond to the Level 2 appeal
within thirty business days of receipt of the appeal.

Level 3

appeals are limited to certain types of grievances relating to
department level policy, the integrity of the grievance procedure
and untimely responses to Level 2 grievances.

The Commissioner

or his or her designee must respond to a Level 3 grievance appeal
within thirty business days of receipt of the appeal.

See id. at

Section 6(A)-(L).
Matters relating to the provision of health services to
inmates are grievable and are addressed in Administrative
Directive Chapter 8.9, entitled Health Services Review.
at Section 4(K).

See id.

Pursuant to Administrative Directive 8.9, an

inmate seeking review of a medical decision regarding the
diagnosis or treatment or lack of a diagnosis or treatment of a
medical condition, must apply for a Health Services Review by
filling out an Inmate Administrative Remedy Form, CN 9602.

See

Administrative Directive Chapter 8.9, Sections 9-11,
www.ct.gov/doc/cwp/view.asp?a=1492&Q=450576&docNav=|.
The plaintiff states that the defendants did not respond to
his administrative remedies.

The plaintiff’s complaint is dated

May 14, 2012, and was received by the court on May 17, 2012.
Considering the date the plaintiff arrived at Bridgeport
Correctional Center, March 28, 2012, and the time periods set

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forth in the Administrative Directives described above, it is
apparent that there was insufficient time for plaintiff to have
fully exhausted his claims prior to filing this lawsuit.
The Second Circuit has cautioned the district courts not to
dismiss a case sua sponte without first ensuring that plaintiff
has notice and an opportunity to be heard.

See Abbas v. Dixon,

480 F.3d 636, 639-40 (2d Cir. 2007); Snider v. Melindez, 199 F.3d
108, 112 (2d Cir. 1999)(requiring district court to afford
prisoner notice and opportunity to demonstrate that he has
exhausted his available remedies).

Accordingly, the Court

directs the plaintiff to file a notice explaining to the Court
why this case should not be dismissed for failure to fully
exhaust his administrative remedies before filing this action.
Any such dismissal would be without prejudice to plaintiff refiling this action after fully exhausting his administrative
remedies.
The plaintiff shall attach to his notice copies of the
documents showing exhaustion of his claims.

In addition, the

plaintiff shall include in the notice his current mailing address
as required by Local Rule 83.1(c)2 and explain why he failed to
notify the court of his change of address in a timely manner.
The plaintiff shall submit the notice within twenty (20) days
from the date of this order.

Failure to provide a notice

including his current address and evidence of exhaustion within
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the time provided will result in the dismissal of this action
without any further notification from the court.
SO ORDERED this 9th day of November 2012, at New Haven,
Connecticut.
/s/ Joan G. Margolis, USMJ
JOAN G. MARGOLIS
UNITED STATES MAGISTRATE JUDGE

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