Price v. Cunnagin et al

Filing 14

MEMORANDUM OPINION & ORDER : 1. The Defendants' Motion to Dismiss or in the Alternative Motion for Summary Judgment [R. 12 ] is GRANTED; 2. Prices pending claims are DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies; and 3. This matter is STRICKEN from the Court's active docket. Signed by Judge Claria Horn Boom on 7/8/19.(SYD)cc: COR, mailed to pro se filer

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at London)
LANDON MASON PRICE,
Plaintiff,
v.
MR. KIZZIAH, et al.,
Defendants.

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Civil Action No. 6:18-CV-313-CHB

MEMORANDUM OPINION
AND ORDER

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In response to pro se plaintiff Landon Price’s claims, the Defendants moved to dismiss
or, in the alternative, for summary judgment. [R. 12] Defendants seek dismissal in part because
Price failed to exhaust his administrative remedies in compliance with the Prison Litigation
Reform Act (“PLRA”). See id. The Court ordered Price to respond to the defendants’ motion
within thirty (30) days, but Price never did so. See [R. 13]
The record before the Court indicates that Price indeed failed to properly pursue his
administrative remedies prior to seeking relief under Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971) in this Court. “There is no question that exhaustion is mandatory
under the PLRA and that unexhausted claims cannot be brought in court.” Jones v. Bock, 549
U.S. 199, 211 (2007); see also 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.”).
Failure to exhaust is an affirmative defense under the PLRA and Price was “not required
to specially plead or demonstrate exhaustion in [his] complaint.” See Bock, 549 U.S. at 216.
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Nevertheless, the Defendants have now asserted their affirmative defense, and Price has wholly
failed to respond to, much less refute, their contention that he did not file a single grievance
related to the First and Eighth Amendment claims pending in this action. 1 See [R. 12-1; R. 12-2]
“[I]f a plaintiff fails to respond or to otherwise oppose a defendant’s motion, then the district
court may deem the plaintiff to have waived opposition to the motion.” Scott v. State of Tenn.,
878 F.2d 382 (Table), 1989 WL 72470 (6th Cir. July 3, 1989).
Because the record indicates Price failed to exhaust his administrative remedies with
respect to his pending claims, and because Price has not opposed the defendants’ motion to
dismiss, dismissal of the present case is appropriate. Accordingly, and with the Court being
otherwise sufficiently advised;
IT IS HEREBY ORDERED as follows:
1.

The Defendants’ Motion to Dismiss or in the Alternative Motion for Summary

Judgment [R. 12] is GRANTED;
2.

Price’s pending claims are DISMISSED WITHOUT PREJUDICE for failure to

exhaust administrative remedies; and
3.

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

This the 8th day of July, 2019.

Notably, the defendants submit evidence that Price successfully filed at least fourteen administrative remedy requests
during his period of incarceration, suggesting that administrative remedies were indeed available to Price during his
time in BOP custody and that Price understood how to seek such administrative relief. [R. 12-2 at p. 2] However,
none of the fourteen grievances concerned the plaintiff’s present claims. Id.
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