Ondek v. Ranatza et al

Filing 36

ORDER granting 24 Motion for Summary Judgment. Plaintiff's claims against Defendants the Louisiana Department of Public Safety and Corrections and James M. Leblanc are hereby DISMISSED WITHOUT PREJUDICE.. Signed by Judge John W. deGravelles on 03/16/2018. (KDC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
MICHAEL A. ONDEK
CIVIL ACTION
v.
NO. 16-725-JWD-RLB
SHEYL M. RANATZA, CHAIRPERSON
FOR THE BOARD OF PARDONS AND
COMMITTEE ON PAROLE, ET AL.

RULING AND ORDER
This matter comes before the Court on the Motion for Summary Judgment filed by
Defendants the Louisiana Department of Public Safety and Corrections (“the DOC”) and James
M. Leblanc, Secretary of the DOC (“Mr. Leblanc”). (Doc. 24.) Plaintiff Michael A. Ondek (“Mr.
Ondek”) opposes this motion. (Docs. 28, 33.) Defendants filed a reply memorandum in support
of their motion. (Doc. 29.) Oral argument is not necessary. The Court has carefully considered
the law, the facts in the record, and the arguments and submissions of the parties and is prepared
to rule. For the following reasons, the motion is GRANTED.
I.

Factual Background
Mr. Ondek is an inmate in the custody of the DOC, serving a life sentence for Second

Degree Murder. (Doc. 24-2 at 1.) This conviction renders Mr. Ondek ineligible for diminution of
sentence and parole, leaving his only avenue for release from custody a pardon or commutation
granted by the Governor. (Id at 1-2.) On November 2, 2015, the Louisiana Board of Pardons
(“the Board”) unanimously voted to deny Mr. Ondek’s request for clemency. (Id at 2.) Upon this
denial, Mr. Ondek filed the instant law suit pursuant to 42 U.S.C. §1983, claiming Defendants

violated his constitutional rights by failing to properly supervise and train the Board. (Id.)1 It is
uncontested that Mr. Odnek failed to submit these claims through the DOC’s administrative
grievance procedure prior to filing the instant suit. (Doc. 28 at 2.)
II.

Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). If the mover bears his burden of showing that there is no genuine issue of fact, “its
opponent must do more than simply show that there is some metaphysical doubt as to the material
facts . . . [T]he nonmoving party must come forward with ‘specific facts showing that there is a
genuine issue for trial.’” See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586–587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal citations omitted). The nonmover's
burden is not satisfied by “conclusory allegations, by unsubstantiated assertions, or by only a
‘scintilla’ of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations
and internal quotations omitted). “Where the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita Elec.
Indus. Co., 475 U.S. at 587. Further:
In resolving the motion, the court may not undertake to evaluate the credibility of
the witnesses, weigh the evidence, or resolve factual disputes; so long as the
evidence in the record is such that a reasonable jury drawing all inferences in favor
of the nonmoving party could arrive at a verdict in that party's favor, the court must
deny the motion.
Int’l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).

1

In support of his claims, Mr. Ondek elaborates on the information introduced at the hearing in which the Board
considered his application for pardon. (Doc. 28 at 2.) Mr. Ondek contends that persons associated with the deceased
victim’s family and law enforcement officers expressed opposition to plaintiff’s application. (Id.) Mr. Ondek asserts
that, despite the fact that he introduced information concerning “his previous social history and criminal record; his
conduct, employment, attitude in prison; his participation in vocational training, adult education, literacy, or reading
programs; and his physical, mental and psychiatric condition,” the Board did not give any of this information serious
consideration and denied his request for clemency on the sole basis of the opposition testimony. (Id.)

2

III.

Discussion
A. Parties’ arguments
1. Defendants’ Memorandum in Support of its Motion for Summary
Judgment (Doc. 24-1)
Defendants, Mr. Leblanc and the DOC, assert that the Prison Litigation Reform Act

(“PLRA”) requires an inmate to exhaust administrative remedies before filing a law suit with
respect to prison conditions under 42 U.S.C. § 1983. (Doc. 24-1 at 2 (citing 42 U.S.C. §1997e(a);
Richardson v. Suprlock, 260 F.3d 495 (5th Cir. 2001).)) Based on this requirement, Defendants
argue Mr. Ondek’s claims against them alleging their failure to supervise and train the Board
must be dismissed because Plaintiff brought this lawsuit without first exhausting his claims
through the Administrative Remedy Procedure (“ARP”). (Id. at 1.)2 Defendants contend that the
PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and whether they allege excessive force or
some other wrong. (Id. (citing Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 992 (2002).))
Defendants argue that because “[a]ctions by prison officials are precisely the reason for the
grievance procedure,” Mr. Odnek’s claims against them concerning the alleged negligent action
of prison officials must be dismissed. (Id at 5.)
2.Plaintiff’s Memorandum in Opposition to Defendant’s Motion for
Summary Judgment (Doc. 28)
Mr. Ondek concedes that he did not seek any form of administrative remedy before filing
the instant law suit against Defendants, but he argues Defendants reliance on the PLRA is
misplaced because his complaint is not about prison conditions or an aspect of prison life. (Doc.

2

Defendants attached a copy of the ARP to their memorandum in support. (See Docs. 24-5; 24-6.)

3

28 at 3.) Mr. Ondek distinguishes his case from those cited by Defendants in support of their
motion, arguing those cases involved either inmate complaints about damages that were
allegedly sustained in connection with some aspect of prison life or challenges to the fact or the
length of an inmate’s confinement, while his case involves a challenge to “the Board’s fairness in
executing its statutory duties, powers, and procedures, the Board’s adherence to the evidencebased principles by which the Board states it is guided, and the adequacy and propriety of
LeBlanc and DOC’s supervision and training of the Board to guard against constitutional
violations.” (Id. at 3-7.) Mr. Ondek argues Defendants’ position is meritless because there is no
requirement to exhaust administrative remedies for a claim that does not involve prison life or
prison conditions. (Id. at 3.)
3.Defendants’ Reply Brief in Support of its Motion for Summary
Judgment (Doc. 29)
Defendants “reassert that they are entitled to summary judgment as a matter of law, as
this matter unquestionably involves the actions of prison officials; thus, this is an inmate suit
about ‘prison life.’” (Doc. 29 at 1.) Defendants aver that while Mr. Ondek asserts that his claims
against Defendants do not involve an aspect of prison life, he fails to offer any argument as to
why he believes this to be so. Defendants reiterate that they take plaintiff’s claims against them
at face value and argue that Mr. Ondek’s claims necessarily involve prison life: “Ondek alleges
that LeBlanc’s and DOC’s actions in improperly training the parole board have somehow caused
a constitutional violation. But for plaintiff’s incarceration and his life in prison, he would not be
subjected to these actions by prison officials.” (Id. at 2.) Further, Defendants contend that other
federal circuits have considered this same issue:
these Courts have held that § 1983 claims regarding decisions of the parole
board, and parole board policies and procedures are subject [to] the exhaustion
4

requirement of the PLRA. See Martin v. Iowa, 752 F.3d 725 (8th Cir.2014) (a
challenge to parole procedures is a civil action with respect to prison conditions
within the meaning of the PLRA, and a prisoner must exhaust administrative
remedies); Owens v. Robinson, 356 Fed.Appx. 904 (8th Cir.2009) (affirming
dismissal of challenge to Iowa’s parole review procedure for failure to exhaust
administrative remedies); and Castano v. Neb. Dep’t of Corr., 201 F.3d 1023,
1024-25 (8th Cir.2000) (defendants’ failure to provide qualified interpreters at
disciplinary hearings and institutional programs bearing on parole eligibility
was subject to exhaustion requirements).
(Id. at 2-3.) In conclusion, Defendants stress “but for plaintiff’s confinement in prison,
he could not be subject to actions by defendants that might result in a constitutional
violation.” (Id. at 3)
4. Plaintiff’s Supplemental Memorandum in Opposition to Defendants’
Motion for Summary Judgment (Doc. 33)
In Mr. Ondek’s Supplemental Memorandum in Opposition, he offers an additional
argument in opposition to Defendants’ motion based on the premise that, under the PLRA, a
prisoner is not required to exhaust administrative remedies that do not exist. (Doc. 33 at 2.) Mr.
Odnek argues that the remedy he seeks is not available under the ARP. (Id.) In support of this
argument, Mr. Ondek cites a provision of the ARP that provides: “…[t]he following matters shall
not be appealable through this Administrative Remedy Procedure:… Board of Pardons and
Parole decisions (under Louisiana Law, these decisions are discretionary and may not be
challenged.)” (Id. (citing Doc. 24-6 at 5.)) Mr. Odnek asserts that, because “his supervision and
training claim is tantamount to an appeal of the Board’s pardon decision,” it falls under this
provision of the ARP. (Id.) Plaintiff reiterates his argument that his claim against Defendants
does not involve prison life or prison conditions and states “it is noteworthy that the [ARP] also
apparently rejects the notion that a Board decision involves an aspect of prison life or prison
condition.” (Id. at 3.) Mr. Odnek avers that in situations like this, “[i]n the absence of an

5

administrative remedy and in the absence of a complaint seeking judicial relief as to prison
conditions or an aspect of prison life, plaintiff is not required to file a grievance before filing his
law suit.” (Id.)
B. Analysis
The Prison Litigation Reform Act (“PLRA”) provides that “no action shall be brought
with respect to prison conditions under § 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.” 42 U.S.C. § 1997e(a). The question here is whether Mr.
Ondek’s § 1983 claims alleging Defendants inadequately and improperly supervised and trained
the Board and Committee on Parole (“the Board”) with respect to the Board’s consideration of
his pardon application is an action “with respect to prison conditions” under § 1997e(a).
Given Congress’ failure to define “prison conditions” in the text of the PLRA exhaustion
provision, the Supreme Court defined the scope of that term in Porter v. Nussle, 534 U.S. 516,
122 S. Ct. 983, 152 L. Ed. 2d 12 (2002).3 The Court held that “the PLRA's exhaustion
requirement applies to all inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege excessive force or some other
wrong.” Id. at 532. Applying Porter’s broad interpretation of prison conditions, the Fifth Circuit
has determined an action with respect to prison conditions to include suits involving challenges
to conditions of confinement and failure to protect claims in addition to those involving
excessive force claims. See Moore v. St. Tammany Par. Jail, 113 F. App’x. 585, 586 (5th

3

The Supreme Court acknowledged that another provision of the PLRA, 18 U.S.C. § 3626(g)(2), which concerns
prospective relief, defines “prison conditions” to mean “the conditions of confinement or the effects of actions by
government officials on the lives of persons confined in prison.” Porter, 534 U.S. at 523, n. 2-3. However, it is
uncertain whether it is proper to import § 3626(g)(2)'s definition of “civil actions brought with respect to prison
conditions” into 42 U.S.C. § 1997e(a), as the Court ultimately concluded, “we rest our decision on the meaning of
‘prison conditions’ in the context of § 1997e, and express no definitive opinion on the proper reading of §
3626(g)(2).” Id., n. 3.

6

Cir.2004)(holding that pretrial detainee who brought civil rights action challenging the
conditions of his confinement was required to first exhaust administrative remedies); Clifford v.
Gibbs, 298 F.3d 328, 330 (5th Cir. 2002)(“Porter squarely precludes Clifford's contention that
his failure-to-protect claim is outside § 1997e(a)'s scope.”) Mr. Odnek attempts to distinguish
this case from those involving conditions of confinement that fall within the exhaustion
provision by arguing he is not challenging the fact or length of his confinement but the adequacy
of Defendants’ supervision and training of the Board. (Doc. 28 at 7.)
The Fifth Circuit has yet to consider the narrow issue of whether § 1983 claims brought
by inmates alleging inadequate training and supervision of the Board with respect to
consideration of pardon applications are actions “with respect to prison conditions” under §
1997e(a). However, the Fifth Circuit has held that § 1983 claims alleging failure to train deputies
on ways to protect pretrial detainees are actions with respect to prison conditions under §
1997e(a). See Hicks v. Lingle, 370 F. App'x 497, 498 (5th Cir. 2010) (dismissing an inmate’s §
1983 claim alleging prison officials failed to train deputies on ways to protect pretrial detainees
because he did not exhaust administrative remedies.) This Court has also considered failure to
train and/or supervise claims brought by inmates and concluded that they were subject to the
exhaustion requirement. See Evans v. Butler, No. CIV.A.09-159-RET-DLD, 2010 WL 2401761,
at *1 (M.D. La. Mar. 18, 2010) (Dalby, Mag.), report and recommendation adopted, No. CIV.A.
09-159-C, 2010 WL 2521013 (M.D. La. June 10, 2010) (1983) (Tyson, C.J.)(dismissing an
inmate’s failure to train and/or supervise claim against Defendant in the instant case, Leblanc,
among other officials for failing to exhaust all administrative remedies); Pea v. Cain, No. CIV.A.
12-779-SDD, 2013 WL 3490829, at *2 (M.D. La. July 10, 2013) (Dick, J.) (concluding that

7

plaintiff’s claim alleging failure to train and/or supervise correctional officers was subject to
dismissal for plaintiff’s failure to exhaust administrative remedies.)
Although neither this Court nor the Fifth Circuit has considered the application the PLRA
exhaustion requirement within the context of parole procedure challenges, other federal courts
have. While these decisions are not binding on this Court, they are persuasive. Defendants cite
cases from the Eighth Circuit holding that §1983 claims challenging decisions of the parole
board and parole board policies and procedures are subject to the exhaustion requirement of the
PLRA. See Martin v. Iowa, 752 F.3d 725 (8th Cir.2014)(a challenge to the Parole procedures is a
civil action with respect to prison conditions within the meaning of the PLRA and a prisoner
must exhaust administrative remedies); Castano v. Neb. Dep't of Corr., 201 F.3d 1023, 1024–25
(8th Cir.2000)(holding a § 1983 action alleging defendants' failure to provide qualified
interpreters at disciplinary hearings and institutional programs bearing on eligibility of parole
was subject to exhaustion requirements of § 1997e(a).) Other federal circuits have also suggested
that claims by inmates involving challenges to parole board decisions and procedures are subject
to the exhaustion provision of the PLRA. Jones v. Douglas, 108 F. App’x. 254, 2004 WL
1770602 (6th Cir. 2004) (unpublished)(affirming dismissal of inmate's claim alleging his rights
under Due Process Clause were violated when he was placed in administrative segregation and
thus precluded from receiving scheduled parole hearing and future hearings due to inmate's
failure to exhaust remedies under PLRA); Jones v. Maher, 131 F. App’x. 813, 2005 WL
1155914 (3rd Cir. 2005)(unpublished)(affirming dismissal of inmate's claims that he was
subjected to discriminatory parole consideration and retaliatory conduct due to inmate's failure to
exhaust remedies under PLRA); Moran v. Sondalle, 218 F.3d 647, 652 (7th Cir. 2000) (stating in

8

dicta that § 1983 attack on the procedures used to deny inmate's application for parole was
subject to PLRA's exhaustion requirements.)
In light of the foregoing, the Court holds that Mr. Ondek’s § 1983 claims alleging
Defendants inadequately supervised and trained the Board with respect to the Board’s
consideration of his pardon application are claims “with respect to prison conditions” as
contemplated by § 1997e(a) of the PLRA. This holding is consistent with Porter’s broad reading
of “prison conditions” and the case law applying it. Notwithstanding this holding, Mr. Odnek’s
claims against Defendants may yet be viable. That is because, under the PLRA, a prisoner need
exhaust only “available” administrative remedies. Ross v. Blake, 136 S. Ct. 1850, 1856, 195
L.Ed.2d 117 (2016). Therefore, Mr. Odnek’s contention that there were no available
administrative remedies for him to exhaust warrants further consideration.
In Ross, the Supreme Court held that the PLRA contains its own textual exception to the
exhaustion requirement, explaining that under § 1997e(a) an inmate's obligation to exhaust
hinges on the “availability” of administrative remedies. Id at 1858. “A prisoner is thus required
to exhaust only those grievance procedures that are ‘capable of use’ to obtain ‘some relief for the
action complained of.’” Id. at 1859 (citing Booth v. Churner, 532 U.S. 731, 738, 121 S.Ct. 1819.)
The Court noted three circumstances in which an administrative remedy, although officially on
the books, is not capable of use to obtain relief and thus an inmate’s duty to exhaust “available”
remedies does not come into play:
First, an administrative procedure is unavailable when it operates as a simple
dead end—with officers unable or consistently unwilling to provide any relief
to aggrieved inmates. Next, an administrative scheme might be so opaque that
it becomes, practically speaking, incapable of use—i.e., some mechanism
exists to provide relief, but no ordinary prisoner can navigate it. And finally, a
grievance process is rendered unavailable when prison administrators thwart
inmates from taking advantage of it through machination, misrepresentation,
or intimidation.
9

Id. at 1859-60.
Louisiana's prisoner grievance system is described in the state's Administrative Code. It
explicitly lists matters that are not appealable through the Administrative Remedy Procedure
(“ARP”) process, providing:
iv. The following matters shall not be appealable through this administrative
remedy procedure:
(a). court decisions and pending criminal matters over which the
department has no control or jurisdiction;
(b). Board of Pardons and Parole decisions (under Louisiana law,
these decisions are discretionary and may not be challenged);
(c). sex offender assessment panel recommendations;
(d). lockdown review board decisions (offenders are furnished written
reasons at the time this decision is made as to why they are not being
released from lockdown, if that is the case. The board's decision may not
be challenged. However, a request for administrative remedy on
lockdown review board hearings can be made in the following instances)
La. Admin. Code tit. 22 Pt. I, § 325(F)(3)(a)(iv)(emphasis added). Applying Ross, it follows that
the matters that are included in this list and therefore barred from the Louisiana ARP process are
not subject to the mandatory exhaustion requirement of the PLRA because they are not available.
Mr. Odnek avers that there was no administrative remedy available for his claims against
Defendants, arguing § 325(F)(3)(a)(iv)(b) of Louisiana’s Administrative Code prevents inmates
from appealing the Board’s decision on a pardon application even where here, that appeal is
based on a claim of inadequate and improper supervision and training of the Board.
Mr. Odnek’s reliance on § 325(F)(3)(a)(iv)(b) of Louisiana’s Administrative Code is
amiss. Mr. Odnek’s claims against Defendants herein—the DOC and Mr. Leblanc—are not
equivalent to an appeal of the Board’s decision to deny his pardon application.4 Instead, Mr.

4

Defendants DOC and Mr. Leblanc are not members of the Board that made the decision to deny his application for
pardon. While Mr. Odnek also brings this law suit against Sheyl M. Ranatza, who is chairperson of the Board, she is
not party to the instant motion. Accordingly, this ruling does not decide whether or not his claims against Ranatza is
an appeal of the Board’s decisions.

10

Odnek § 1983 claims against Defendants allege they failed to adequately train and supervise the
Board in making their decision, which is not included in the list of matters that are barred from
the ARP process. Furthermore, Mr. Odnek has not presented an argument or plead any facts
suggesting that this case falls within the purview of any of the three circumstances that would
merit a finding that administrative procedures were unavailable to him despite the fact that they
are on the books. Therefore, Mr. Odnek’s claims against Defendants does not fit within the
PLRA’s textual exception to mandatory exhaustion under § 1997e(a) and must be dismissed for
failure to exhaust.
IV.

Conclusion
Accordingly,
IT IS ORDERED that the Motion for Summary Judgment (Doc. 24) filed by Defendants

the Louisiana Department of Public Safety and Corrections and James M. Leblanc is
GRANTED. Plaintiff’s claims against Defendants the Louisiana Department of Public Safety
and Corrections and James M. Leblanc are hereby DISMISSED WITHOUT PREJUDICE.
Signed in Baton Rouge, Louisiana, on March 16, 2018.

S

JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

11