McBee v. Campbell County Detention Center et al
MEMORANDUM OPINION & ORDER: (1) Plaintiff Richard McBees Complaint 1 at 16, 20-21, 23-26, Claims 5, 9, and 12) is DISMISSED WITHOUT PREJUDICE; (2) This action is STRICKEN from the Courts active docket; and (3) A corresponding Judgment will be entered this date.. Signed by Judge David L. Bunning on 01/09/2018.(KRB)cc: COR, Richard Mcbee via US Mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 17-41-DLB
MEMORANDUM OPINION AND ORDER
CAMPBELL CO. DETENTION CENTER, et al.
** ** ** ** ** ** ** **
Richard McBee is an inmate confined at the Campbell County Detention Center
(“CCDC”). McBee has filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983.
(Doc. # 1). The Court must conduct a preliminary review of McBee’s complaint because
he has been granted permission to proceed in forma pauperis and because he asserts
claims against government officials. 28 U.S.C. §§ 1915(e)(2), 1915A. A district court
must dismiss any claim that is frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a defendant who is immune from
such relief. Hill v. Lappin, 630 F. 3d 468, 470-71 (6th Cir. 2010).
McBee’s original Complaint in McBee v. Campbell Co. Det. Ctr., No. 2:16-cv-57WOB (E.D. Ky. 2016), asserted over a dozen claims loosely related to the ongoing
criminal prosecution against him and to the conditions of his confinement at CCDC. (Doc.
# 1). In that case, the Court screened McBee’s complaint and concluded that it improperly
joined numerous but unrelated claims against a variety of defendants, and ordered that
these claims be severed into distinct cases. (Doc. # 3). This is one of those new cases.
Before this Court are only McBee’s fifth claim that the jail sold him postage stamps at a
markup (Doc. # 1 at 16); his ninth claim that the jail only permits him to shave twice a
week with a dull razor (Doc. # 1 at 20-21); and his twelfth claim related to the environment
of his cell and shower and the manner of his supervision and monitoring (Doc. # 1 at 2326). (See Doc. # 3 at 7, 15).
But before a prisoner can file suit regarding the conditions of his confinement,
federal law requires him or her to first exhaust all available administrative remedies at the
jail. 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question
that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be
brought in court.”). When it is apparent from the face of the complaint that he or she failed
to do so, the complaint may be dismissed without prejudice upon initial review. Jones,
549 U.S. at 214-15; see also Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007) (where
complaint made clear that prisoner failed to exhaust administrative remedies, district court
may dismiss it sua sponte for failure to state a claim); Barnett v. Laurel Cty., Ky., No. 165658, 2017 WL 3402075, at *1 (6th Cir. Jan. 30, 2017); Fletcher v. Myers, No. 5:11-141KKC, 2012 WL 1802618, at *2 (E.D. Ky. May 17, 2012), aff’d, No. 12-5630 (6th Cir. Jan.
4, 2013) (“Because Fletcher’s failure to exhaust, or to attempt to exhaust, administrative
remedies is apparent from the face of his complaint, the district court properly dismissed
Fletcher’s complaint on that basis.”).
Here, McBee admits in his Complaint that he did not exhaust his administrative
remedies before filing suit. (Doc. # 1 at 34-35). He does offer a variety of excuses in an
attempt to justify that failure, but none of them are sufficient. McBee’s primary contention
is that he did not file grievances regarding his claims because prison guards would not
give him the “official” grievance forms. (Doc. # 1 at 34). But McBee acknowledges in his
Complaint that prison guards did provide him with a grievance form earlier in the year.
(Doc. # 1 at 34, 36). More fundamentally, even if the guards did not give McBee the 11
official grievance forms he requested, id. at 34, a plaintiff’s allegation that prison officials
refused to give him grievance forms does not satisfy the exhaustion requirement. Belser
v. James, No. 16-2578, 2017 WL 5479595, at *2 (6th Cir. 2017) (citing Arbuckle v.
Bouchard, 92 F. App’x 289, 291 (6th Cir. 2004) (“[Plaintiff]’s bald assertion that [the
grievance coordinator] refused to give him grievance forms is not enough to excuse the
complete absence of evidence that he attempted to exhaust his administrative remedies
for the many claims he raised in his district court complaint.”)). In addition, McBee does
not allege that he tried to and was prevented from filing grievances on an ordinary sheet
of paper; instead, he accuses prison officials of playing “mind games.” (Doc. # 1 at 35).
That is not a sufficient basis for McBee to disregard the jail’s grievance procedure.
McBee also claims the detention center “does not have a coherent grievance
policy,” and complains that the jail did not hold an orientation session to explain its
grievance procedures to new inmates. (Doc. # 1 at 35). But “a prisoner’s ‘failure to
exhaust cannot be excused by his ignorance of the law or the grievance policy.’” Barnett,
2017 WL 3402075, at *3 (quoting Napier v. Laurel County, 636 F.3d 218, 221 n.2 (6th Cir.
2011)). Nor does his conclusory assertion that CCDC’s grievance procedure is “arbitrary”
and “arbitrarily applied” (Doc. # 1 at 35) justify his refusal to follow it: a prisoner is required
to exhaust his administrative remedies even if he subjectively believes a remedy is not
available and even when he believes the procedures are ineffectual or futile. Barnett,
2017 WL 3402075, at *3 (citing Napier, 636 F.3d at 222.).
McBee admits in his Complaint that he did not exhaust his administrative remedies,
and his attempts to explain that clear failure are not sound. The exhaustion requirement
is a strong one, and where the plaintiff has not complied with it a district court may properly
dismiss the complaint without prejudice to afford the plaintiff the opportunity to properly
invoke and follow the jail’s grievance procedures with respect to his concerns. Napier,
636 F.3d at 222. Accordingly,
IT IS ORDERED as follows:
Plaintiff Richard McBee’s Complaint (Doc. # 1 at 16, 20-21, 23-26, Claims
5, 9, and 12) is DISMISSED WITHOUT PREJUDICE;
This action is STRICKEN from the Court’s active docket; and
A corresponding Judgment will be entered this date.
This 9th day of January, 2018.
K:\DATA\ORDERS\ProSe\McBee 17-41-DLB Memorandum RBW.docx
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?