Odom v. Smith

Filing 67

RULING granting 42 Motion to Dismiss. All of Plaintiffs claims regarding events that occurred after 6/20/2016, are DISMISSED without prejudice. Signed by Judge Shelly D. Dick on 2/21/2018. (SGO)

R83UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TRIVENSKEY ODOM

CIVIL ACTION

VERSUS

16-748-SDD-EWD

LIEUTENANT JUAN SMITH; and
CADET DEMETRIOUS LOLLIS

RULING
This matter is before the Court on the Motion to Dismiss Pursuant to FRCP Rule
12(b)(6)1 by Defendants, Lieutenant Juan Smith (“Lt. Smith”) and Cadet Demetrious Lollis
(“Cdt. Lollis”) (or collectively “Defendants”). Plaintiff, Trivenskey Odom (“Odom”), has
filed an Opposition2 to this motion, to which Defendants filed a Reply.3 For the following
reasons, the Court finds that Defendants’ motion should be GRANTED.
I.

FACTUAL BACKGROUND4
Plaintiff alleges that, on June 20, 2016, he was an inmate housed at Louisiana

State Penitentiary (“LSP”).5 Plaintiff contends that, on that same date, after returning from
the shower, Lt. Smith attempted to sexually assault him.6 Odom alleges that Lt. Smith
placed a knife to his neck and forced Odom on the bed where he proceeded to get on top
of him.7 A struggle ensued between the two, and Odom gained access to Lt. Smith’s

1

Rec. Doc. No. 42.
Rec. Doc. No. 43.
3
Rec. Doc. No. 46.
4
The facts are drawn from the Complaint (Rec. Doc. No. 1), Amended Complaint (Rec. Doc. No. 39), and
the Parties’ memoranda.
5
Rec. Doc. No. 1 p.2.
6
Id. at pp. 3-6.
7
Id.
2

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walkie-talkie and repeatedly pressed the emergency call button.8 As a result of this
encounter, Odom alleges that he filed an administrative remedy procedure (“ARP”)
against Lt. Smith and a Prison Rape Elimination Act (“PREA”) investigation was
conducted.9 Plaintiff alleges that, on August 5, 2016, Cdt. Lollis pushed him to the ground
and kicked him in the head.10 Odom alleges that Cdt. Lollis was ordered by Lt. Smith to
attack him.11 Plaintiff alleges that he also filed a complaint for this incident and was placed
on suicide watch in retaliation for the complaint.12
On November 8, 2016, Odom filed the present action pursuant to 42 U.S.C. §1983
against Lt. Smith and Cpl. Lollis. Odom claims that the Defendants violated his 4th, 8th,
and 14th amendment rights to be free from the use of unnecessary and/or excessive
force, corporal punishment, and cruel and unusual punishment. Defendants filed their first
Motion to Dismiss13 on December 8, 2016. On April 5, 2017, this Court issued a Ruling14
denying Defendant’s Motion considering the Magistrate Judge’s Scheduling Order15
allowing for amended pleadings. Plaintiff filed an Amended Complaint16 on June 30, 2017.
Thereafter, Defendants filed the current Motion re-asserting their prior arguments that
Plaintiff failed to exhaust administrative remedies as to any claims prior to the June 20,
2016 incident.

8

Id.
Id. at pp. 1, 6.
10
Id. at p. 7.
11
Id. at p. 8.
12
Id. at p. 6.
13
Rec. Doc. No. 8.
14
Rec. Doc. No. 19.
15
Rec. Doc. No. 18.
16
Rec. Doc. No. 39.
9

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II.

LAW AND ANALYSIS
A. Motion to Dismiss Under Rule 12(b)(6)
When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all well-

pleaded facts as true, viewing them in the light most favorable to the plaintiff.’”17 The
Court may consider “the complaint, its proper attachments, documents incorporated into
the complaint by reference, and matters of which a court may take judicial notice.”18 “To
survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state
a claim to relief that is plausible on its face.’”19 In Twombly, the United States Supreme
Court set forth the basic criteria necessary for a complaint to survive a Rule 12(b)(6)
motion to dismiss. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.”20 A complaint is also insufficient if it
merely “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”21 However,
“[a] claim has facial plausibility when the plaintiff pleads the factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”22 In order to satisfy the plausibility standard, the plaintiff must show “more than

17

In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin v. Eby Constr.
Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).
18
Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011).
19
In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (quoting Martin v. Eby Constr. Co. v. Dallas Area
Rapid Transit, 369 F.3d at 467).
20
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and brackets omitted)
(hereinafter Twombly).
21
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citations omitted)
(hereinafter “Iqbal”).
22
Iqbal, 556 U.S. at 678.

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a sheer possibility that the defendant has acted unlawfully.”23 “Furthermore, while the
court must accept well-pleaded facts as true, it will not ‘strain to find inferences favorable
to the plaintiff.’”24 On a motion to dismiss, courts “are not bound to accept as true a legal
conclusion couched as a factual allegation.”25
B. Exhaustion of Administrative Remedies
Under the Prison Litigation Reform Act (“PLRA”), a prisoner may not bring an
action under § 1983 until he exhausts administrative remedies.26 42 U.S.C. § 1197e(a)
states that:
No action shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner in any jail, prison,
or other correctional facility until such administrative remedies as are
available are exhausted.
The Supreme Court has held that “the PLRA's exhaustion requirement applies to
all inmate suits about prison life, whether they involve general circumstances or particular
episodes.”27 The Supreme Court made clear that exhaustion is now mandatory.28 The
Fifth Circuit has held that the available administrative remedy must be pursued to its
conclusion.29 Moreover, the Fifth Circuit has held that the exhaustion requirement must
be completed prior to filing suit, stating:
District courts have no discretion to excuse a prisoner’s failure to properly
exhaust the prison grievance process before filing their complaint. It is
irrelevant whether exhaustion is achieved during the federal proceedings.
Pre-filing exhaustion is mandatory, and the case must be dismissed if
23

Id.
Taha v. William Marsh Rice University, 2012 WL 1576099 at *2 (quoting Southland Sec. Corp. v. Inspire
Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004).
25
Twombly, 550 U.S. at 556 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d
209 (1986)).
26
42 U.S.C. §1997 et seq.
27
Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002).
28
Id. at 524, 122 S.Ct. 983, 988.
29
Wright v. Hollingsworth, 260 F.3d 357 (5th Cir. 2001).
24

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available administrative remedies were not exhausted.30
Following the precedent set by the Fifth Circuit, this district has declined to allow
prisoner litigants to cure the failure to exhaust by amendment stating, “The Court will not
allow [a] plaintiff to circumvent the clear intent of the exhaustion requirement by permitting
him to file his federal Complaint prior to administrative exhaustion and by then allowing
him to simply amend his Complaint to allege exhaustion once he has received a final
agency determination.”31
Here, Plaintiff has done exactly what the PLRA prohibits. Odom filed suit alleging
violations under § 1983 prior to exhausting available administrative remedy procedures.
In his original complaint, Odom clearly stated that, other than the appropriately exhausted
ARP of the sexual assault on June 20, 2016, there were three ARPs pending concerning
alleged retaliatory events that were backlogged at the time he initiated litigation.32
Specifically, Odom points to those ARPs filed on June 24, 2016, July 4, 2016, and August
5, 2016.33 Allegedly, those ARPs pertained to incidents of retaliation involving other
officers, not just Lt. Smith and Cpl. Lollis, at LSP which occurred after the June 20, 2016
sexual assault.34
Next, Plaintiff attempted to cure the mistake by filing an Amended Complaint on
June 30, 2017, alleging that the ARPs mentioned in the original Complaint had since been
exhausted.35 In further support, Plaintiff’s Opposition presents the Court with a timeline

30

Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012). Wherein the 5th circuit tacitly overruled their decision
in Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998) after reviewing the Supreme Court decisions in
Woodford v. Ngo, 548 U.S. 81 (2006) and Jones v. Bock, 549 U.S. 199 (2007).
31
Kelly v. Singh, No. CIV.A. 14-64-JJB-RLB, 2014 WL 4660854, at *2 (M.D. La. Sept. 17, 2014).
32
Rec. Doc. No. 1 pp. 1-2.
33
Id.
34
Rec. Doc. No. 1 pp. 5-8.
35
Rec. Doc. No. 39 pp. 1-3.

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showing the alleged dates that the ARPs became exhausted as a matter of law.36
However, none of the dates Plaintiff alleged occurred prior to the November 8, 2016 filing
of Odom’s original Complaint. Considering the evidence before the Court in the original
Complaint, Amended Complaint, and Plaintiff’s Opposition, it is clear that Odom failed to
exhaust administrative remedies pertaining to all the events alleged after the June 20,
2016 sexual assault. As stated above, Odom cannot cure his exhaustion deficiencies
merely by amendment. Therefore, Plaintiff has failed to state a claim upon which relief
can be granted as to those claims that were not exhausted.37

36

Rec. Doc. No. 43 pp. 3-4.
Insofar as Plaintiff argues that Defendants have failed to prove exhaustion as an affirmative defense, the
Court finds that it is clear from the original Complaint that Plaintiff failed to exhaust prison grievance
procedures. See Kelly v. Singh, No. CIV.A. 14-64-JJB-RLB, 2014 WL 4660854, at *2 (M.D. La. Sept. 17,
2014). Although administrative exhaustion is an affirmative defense which a prisoner plaintiff is not required
to plead or prove in his Complaint, Jones v. Bock, 549 U.S. 199, 216 (2007), when it is apparent from the
face of the Complaint that an inmate plaintiff has failed to exhaust prison grievance procedures, a dismissal
sua sponte is appropriate upon initial review for failure of the plaintiff to state a claim upon which relief may
be granted. See Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007).
37

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III.

CONCLUSION
For the reasons set forth above, the Motion to Dismiss38 by Defendants is

GRANTED. All of Plaintiff’s claims regarding events that occurred after June 20, 2016,
are DSIMISSED without prejudice.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on February 21, 2018.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

38

Rec. Doc. No. 42.

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