Barnett v. Laurel County, Kentucky et al

Filing 17

MEMORANDUM OPINION & ORDER: 1. Barnett's complaint [R. 1 ] is DISMISSED WITHOUT PREJUDICE; 2. The Court will enter an appropriate judgment contemporaneously herewith; and 3. This matter is STRICKEN from the Court's active docket. Case Terminated. Signed by Judge Gregory F. Van Tatenhove on 6/2/2017.(RBB)cc: COR, paper copy to pro se filer, ROBERT HERALD BARNETT, via US Mail.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
ROBERT HERALD BARNETT,
Plaintiff,
v.
LAUREL COUNTY, KENTUCKY, et al.,
Defendants.

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Civil No. 6:16-CV-66-GFVT

MEMORANDUM OPINION
&
ORDER

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This matter is before the Court on remand from the Sixth Circuit Court of Appeals.
[R. 13.] For the reasons explained below, the Court concludes that this action must be dismissed
for failure to exhaust administrative remedies. However, such dismissal must be without
prejudice to the plaintiff’s right to file a new complaint, which Barnett may do once he has
properly exhausted his administrative remedies by completing the jail’s grievance and appeals
process.
Plaintiff Robert Herald Barnett is a federal inmate confined at the Federal Correctional
Institution - Beckley in Beaver, West Virginia. On April 21, 2016, Barnett filed a pro se civil
rights complaint against officers and staff at the Laurel County Detention Center (“LCDC”).
Barnett alleged that on April 29, 2015, the staff and officers’ lack of due care caused him to fall
from a prisoner transport van and sustain significant injuries. [R. 1.] This Court dismissed the
complaint upon initial screening based upon Barnett’s candid acknowledgment that he had not
attempted to exhaust his administrative remedies. [R. 5 at 2-4.] The Court further concluded
that the dismissal must be with prejudice because the LCDC’s grievance system was no longer

available to him, due to both the passage of time and his transfer out of that facility. [R. 5 at 45.]
On appeal, the Sixth Circuit agreed with the first conclusion but disagreed with the
second. [R. 13.] LCDC’s grievance policy used to require that grievances be filed “promptly
following the incident,” Napier v. Laurel Cty., Ky., 636 F.3d 218, 222 (6th Cir. 2011), but that
language was no longer part of its policy when Barnett was injured in 2015. The Sixth Circuit
therefore remanded the action to this Court to either (1) clarify its basis for concluding that
Barnett’s grievances would be barred as untimely, (2) to dismiss the complaint without
prejudice, or (3) to conduct further proceedings. [R. 13 at 4.] The Sixth Circuit has since issued
its mandate [see R. 16], re-vesting this Court with jurisdiction to proceed.
As a preliminary matter, the Court must confess error in its original opinion regarding the
timeliness requirement under LCDC’s grievance policy. While the current policy plainly no
longer includes such a requirement, see http://www.laurelcorrections.com/plugins/show_image
.php?id=29 (Revised March 2, 2015), in Barnett’s case the Court inadvertently relied upon the
prior version described in the Sixth Circuit’s Napier decision, which included a requirement that
grievances be filed “promptly.” See Napier, 636 F.3d at 222.
Shortly after the Sixth Circuit issued its decision, Barnett filed with the Court a copy of a
grievance dated February 12, 2017, which he indicates was sent by certified mail to LCDC.
Barnett therefore contends that he satisfied LCDC’s grievance policy. [R. 14.] But a prisoner
must exhaust his or her administrative remedies, in their entirety, before he files suit. “The
prisoner . . . may not exhaust administrative remedies during the pendency of the federal suit.”
Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999) (emphasis added). Here, Barnett did not
file his inmate grievance until February 2017—ten months after he filed this suit—and there is
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nothing in the record to indicate that LCDC has responded to his grievance. Because Barnett’s
suit was premature when he filed it in April 2016, the appropriate course is to dismiss it without
prejudice. This will permit Barnett to properly, and fully, exhaust his administrative remedies
with LCDC. Once he has done so, he may file a new complaint asserting his claims.
In this regard, Barnett is advised that LCDC’s grievance policy states that there shall be
at least one level of appeal, and Barnett must complete that process as well to fully exhaust his
remedies. Cf. Liggett v. Mansfield, 2009 WL 1392604, at *2-3 (E.D. Tenn. May 15, 2009) (“A
prisoner who files a grievance but does not appeal to the highest possible administrative level,
does not exhaust available administrative remedies.”) (citing Hartsfield v. Vidor, 199 F.3d 305,
309 (6th Cir. 1999)).
Accordingly, the Court hereby ORDERS that:
1.

Barnett’s complaint [R. 1] is DISMISSED WITHOUT PREJUDICE;

2.

The Court will enter an appropriate judgment contemporaneously herewith; and

3.

This matter is STRICKEN from the Court’s active docket.

This the 2nd day of June, 2017.

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