JAMES v. BUENO et al

Filing 57

REPORT AND RECOMMENDED DECISION re 32 MOTION to Dismiss filed by JOY HALL. Objections to R&R due by 11/21/2016. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MICHAEL J. JAMES,
Plaintiff
v.
ERIC BUENO , et al.,
Defendants

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1:16-cv-00416-NT

RECOMMENDED DECISION ON DEFENDANT HALL’S MOTION TO DISMISS
In this action, Plaintiff Michael James, an inmate at the Maine State Prison, alleges
Defendants deprived him of certain federal rights when they placed him in solitary confinement
based on false accusations. (Complaint at 3, ¶ IV.) He asserts the confinement included the use
of excessive force. (Id.)
The matter is before the Court on Defendant Debra Joy Hall’s motion to dismiss (ECF No.
32). Through the motion, Defendant contends dismissal is warranted because Plaintiff failed to
exhaust the available administrative remedies before he commenced this action.
After review of the pleadings, I recommend the Court deny the motion to dismiss.
BACKGROUND
In his complaint, Plaintiff joined four defendants, including Debra Joy Hall, LCSW.
Plaintiff alleged that he “filed multiple grievances to all 3 members mentioned in this lawsuit” and
that the defendants failed to comply with the grievance procedure. (Complaint at 2, ECF No. 1.)
On September 2, 2016, Plaintiff filed multiple copies of grievance-related paperwork. (ECF Nos.
13 (providing copies of grievances), 14 (providing copies of responses)).

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DISCUSSION
Federal law requires a prisoner to exhaust the available administrative remedies before
initiating a lawsuit based on 42 U.S.C. § 1983. Specifically, the Prison Litigation Reform Act
provides: “[n]o 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.” 42 U.S.C. § 1997e(a);
see also 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.”); Booth v.
Churner, 532 U.S. 731, 734 (2001) (affirming dismissal of action without prejudice based on
prisoner’s failure to completely exhaust available process even though the relief he sought was
unavailable in that process). “[T]he 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.” Porter v. Nussle, 534 U.S. 516, 532 (2002).
Because under the PLRA exhaustion is a precondition to filing suit, a plaintiff cannot
proceed on a claim regarding prison conditions if the plaintiff initiates the lawsuit before the
plaintiff has exhausted the available administrative remedies. Perez v. Wisconsin Dep’t of Corr.,
182 F.3d 532, 534 (7th Cir. 1999); see also Ruppert v. Aragon, 448 Fed. App’x 862, 863 (10th Cir.
2012) (“Since the PLRA makes exhaustion a precondition to filing a suit, an action brought before
administrative remedies are exhausted must be dismissed without regard to concern for judicial
efficiency.”)
“[F]ailure to exhaust is an affirmative defense under the PLRA, and … inmates are not
required to specially plead or demonstrate exhaustion in their complaints.” Jones, 549 U.S. at 216.
As an affirmative defense, failure to exhaust may be waived by a defendant who fails to establish

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the defense. Casanova v. Dubois, 304 F.3d 75, 77 n.3 (1st Cir. 2002) (citing Wendell v. Asher,
162 F.3d 887, 890 (5th Cir. 1998) (“Rather, the amended statute imposes a requirement [of
exhaustion], rather like a statute of limitations, that may be subject to certain defenses such as
waiver, estoppel, or equitable tolling.”)).
Through her motion, Defendant Hall asks the Court to take judicial notice of the
Department of Corrections’ three-level grievance process. (Motion at 2.) Defendant Hall argues
that although Plaintiff’s grievances include some reference to her, her conduct is not the subject of
all of the grievances. (Id. at 3.) Additionally, noting that the grievances include a level one
grievance dated June 20, 2016 (PageID # 53), Defendant Hall argues the Court should conclude
that Plaintiff could not have exhausted the three-level grievance procedure before filing his
complaint on August 15, 2016. In further support of her exhaustion argument, Defendant Hall
also observes that Plaintiff’s grievance-related filings include a level two grievance (PageID # 48),
and a level three grievance regarding other parties (PageID # 46, 77), that were pending after
Plaintiff filed this action. (Motion at 3–5.)
Even if the Court took judicial notice of the Department’s three-level grievance procedure,
Defendant’s request for dismissal fails. Plaintiff is not required to allege or otherwise demonstrate
exhaustion of administrative remedies in his complaint. Jones, 549 U.S. at 216. Here, although
some of the filings suggest Plaintiff might not have exhausted his administrative remedies
regarding some claims and some defendants, the pleadings do not clearly establish that he failed
to exhaust his administrative remedies. The pleadings in this case are in contrast to a recent case
in which this Court granted a motion to dismiss based on the plaintiff’s failure to exhaust the
available administrative remedies.

In the earlier case, the plaintiff’s pleadings clearly and

unequivocally established that the plaintiff had not yet exhausted the available administrative

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remedies. Gagnon v. Gosselin, No. 1:16-cv-24-NT (ECF Nos. 22, 23), 2016 WL 4995024, at *3
(D. Me. Sept. 19, 2016), report and recommendation adopted, 2016 WL 6088271 (D. Me. Oct.
18, 2016) (“Ordinarily, resolution of an exhaustion defense would require a summary judgment
record. In this case, however, Plaintiff’s own words on a note signed on the same date as Plaintiff's
complaint acknowledge that when he filed the complaint, he had not exhausted his administrative
remedies regarding his claim against Defendant.”)
In sum, because failure to exhaust is an affirmative defense, and because a plaintiff is not
required to plead facts to establish exhaustion, a defendant usually cannot prevail on the defense
based on the initial pleadings. In this case, Plaintiff’s submissions do not plainly establish that he
failed to exhaust the available administrative remedies.1 Accordingly, Defendant Hall is not
entitled to the dismissal of Plaintiff’s complaint at this stage of the proceedings.
CONCLUSION
Based on the foregoing analysis, I recommend the Court deny Defendant Hall’s motion to
dismiss. (ECF No. 32.)
NOTICE
A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered pursuant to
28 U.S.C. 636(b)(1)(B) for which de novo review by the district court is sought,
together with a supporting memorandum, within fourteen (14) days of being served
with a copy thereof. A responsive memorandum shall be filed within fourteen (14)
days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right to de
novo review by the district court and to appeal the district court's order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 3rd day of November, 2016.
In his opposition to the motion to dismiss (ECF No. 39), Plaintiff asserted that he “has gone to all 3 levels in the
grievance.” (Id. at 1.)

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