Price #256947 v. Palmer et al

Filing 20

REPORT AND RECOMMENDATION re 16 ; objections to R&R due within 14 days; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION VERNON L. PRICE, Case No. 1:09-cv-172 Plaintiff, Hon. Robert J. Jonker v. CARMEN PALMER, et al., Defendants. / REPORT AND RECOMMENDATION This is a civil rights action brought by a former state prisoner pursuant to 42 U.S.C. § 1983. This matter is now before the court on defendants' motion to dismiss for failure to exhaust administrative remedies (docket no. 16). I. Background

Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, which confers a private federal right of action against any person who, acting under color of state law, deprives an individual of any right, privilege or immunity secured by the Constitution or federal laws. Burnett v. Grattan, 468 U.S. 42, 45 n. 2 (1984); Stack v. Killian, 96 F.3d 159, 161 (6th Cir.1996). To state a § 1983 claim, a plaintiff must allege two elements: (1) a deprivation of rights secured by the Constitution and laws of the United States, and (2) that the defendant deprived him of this federal right under color of law. Jones v. Duncan, 840 F.2d 359, 360-61 (6th Cir. 1988); 42 U.S.C. § 1983. Plaintiff was transferred to the Michigan Reformatory Correctional Facility (RMI) on January 7, 2009. Compl. (docket no. 1). At that time, plaintiff was in a leg cast due to surgery on a ruptured achilles tendon and required the use of a wheelchair. Id. Plaintiff alleged that RMI

was not handicapped accessible. Id. Plaintiff spoke to Deputy Warden Timothy Kipp on January 10th, requesting a transfer to another facility that could meet his medical condition. Id. Deputy Warden Kipp told plaintiff that he had about 60 days before discharge from prison and that they were not going to spend money to transfer him. Id. Plaintiff wrote to Warden Carmen Palmer on January 15th explaining his problems, but she did not respond. Id. On January 27th, plaintiff fell while climbing stairs with his crutches and suffered injuries to his back and ankle. Id. Plaintiff wrote to Warden Palmer on January 30th reporting the incident from the 27th. Id. Warden Palmer did not respond. Id. For his relief, plaintiff seeks to "hold responsible the defendants for the decisions they made to keep me at this facility," which "caused me to be forced in a situation where I was subjected to injuries." Id. In his complaint, plaintiff alleged that defendants Warden Palmer and Deputy Warden Kipp denied plaintiff's transfer to another facility that could accommodate his medical condition. Defendants have moved to dismiss plaintiff's action for failure to exhaust administrative remedies. Their motion is unopposed.1 II. A. Defendants' motion to dismiss Legal Standard

Defendants seek to dismiss plaintiff's action pursuant to Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it
Plaintiff was incarcerated when he filed this action on February 27, 2009. According to the Michigan Department of Corrections Offender Tracking Information System (OTIS), plaintiff was discharged from prison on March 2, 2009. See www.state.mi.us/mdoc (reference: Vernon Lamont Price, No. 256947). Plaintiff now resides in South Bend, Indiana. See docket no. 5.
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asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of `entitlement to relief.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal citations omitted). In making this determination, the complaint must be construed in the light most favorable to the plaintiff, and its well-pleaded facts must be accepted as true. Morgan v. Churchs Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). "When a court is presented with a Rule 12(b)(6) motion, it may consider the Complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to in the Complaint and are central to the claims contained therein." Bassett v. National Collegiate Athletic Association, 528 F.3d 426, 430 (6th Cir. 2008). B. Exhaustion

The Prison Litigation Reform Act ("PLRA") 42 U.S.C. § 1997e, provides that a prisoner bringing an action with respect to prison conditions under 42 U.S.C. § 1983 must first exhaust available administrative remedies. See Porter v. Nussle, 534 U.S. 516 (2002); Booth v. Churner, 532 U.S. 731 (2001). A prisoner must exhaust available administrative remedies, even if the prisoner may not be able to obtain the specific type of relief he seeks in the state administrative process. See Porter, 534 U.S. at 520; Booth, 532 U.S. at 741. In order to properly exhaust administrative remedies, prisoners must complete the administrative review process in accordance with the deadlines and other applicable procedural rules. Jones v. Bock, 549 U.S. 199, 218 (2007); Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). "Compliance with prison grievance procedures, therefore, is all that is required by the PLRA to `properly exhaust.' " Jones, 549 U.S. at 218.

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Defendants have moved to dismiss this action for lack of exhaustion. A defendant can raise affirmative defenses in a motion to dismiss. See, e.g., Jackson v. Schultz, 429 F.3d 586, 589 (6th Cir. 2005) (defendant could properly raise the affirmative defense of qualified immunity "based on a pre-answer motion to dismiss"); New England Health Care Employees Pension Fund v. Ernst & Young, LLP, 336 F.3d 495, 501 (6th Cir. 2003) ("Like other Rule 12(b)(6) motions to dismiss, a motion to dismiss on statute of limitations grounds should be granted when the statement of the claim affirmatively shows that the plaintiff can prove no set of facts that would entitle him to relief. A court that is ruling on a Rule 12(b)(6) motion may consider materials in addition to the complaint if such materials are public records or are otherwise appropriate for the taking of judicial notice.") (internal quotation marks and citations omitted). It is appropriate for defendants in a prisoner civil rights action to raise the affirmative defense of failure to exhaust administrative remedies in a motion to dismiss. Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir.), cert. denied 129 S. Ct. 733 (2008). "Because exhaustion of administrative remedies is a matter in abatement and not generally an adjudication on the merits, an exhaustion defense [under the PLRA] . . . is not ordinarily the proper subject for a summary judgment; instead, it should be raised in a motion to dismiss, or be treated as such if raised in a motion for summary judgment." Id. (internal quotation marks omitted). The MDOC grievance procedure is an administrative review regulated by the agency's Policy Directives. This court may take judicial notice of plaintiff's grievance filings in this state agency proceeding for purposes of deciding a motion to dismiss. See Jones v. City of Cincinnati, 521 F.3d 555, 562 (6th Cir. 2008) (a court may consider public records without converting a Rule 12(b)(6) motion into a Rule 56 motion, but may only take judicial notice of facts

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which are not subject to reasonable dispute); Marshek v. Eichenlaub, No. 07-1246, 2008 WL 227333 at *1 (6th Cir. Jan. 25, 2008) (court can take judicial notice of prisoner's transfer as shown in the Bureau of Prison's Inmate locator accessed on the agency's official website); Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2nd Cir. 1991) ("[w]here plaintiff has actual notice of all the information in the movant's papers and has relied upon these documents in framing the complaint the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated"); Walker v. Woodford, 454 F.Supp.2d 1007, 1021-23 (S.D.Cal. 2006) (the Court may consider a limited set of documents without converting a Rule 12(b)(6) motion into a motion for summary judgment, including matters that can be judicially noticed; documents pertaining to the prisoner's exhaustion efforts "are part of a state administrative proceeding and may be judicially noticed, not for the truth of their contents but for the fact that the grievance proceeding occurred"); Eggerson v. United States, 1: 05-cv-594, 2006 WL 1720252 at *3 (W.D.Mich. June 22, 2006) ("In ruling on a motion under Rule 12(b)(6), the court may supplement the facts alleged in the pleadings by considering facts susceptible to judicial notice under Fed.R.Evid. 201"); Walker v. Abdellatif, No. 1:07-cv-1267, 2009 WL 579394 (W.D. Mich. March 5, 2009) (taking judicial notice of MDOC prisoner grievance proceedings in deciding motion to dismiss for lack of exhaustion); White v. Correctional Medical Services, Inc., No. 1:08-cv-277, 2009 WL 596473 (W. D. Mich. March 6, 2009) (same). Taking judicial notice of a prisoner's administrative grievance proceeding is consistent with the purpose of the PLRA's "invigorated" exhaustion provision, which Congress enacted to control the "sharp rise in prisoner litigation in the federal courts." Woodford, 548 U.S.

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at 84. One reason for creating prisoner grievance procedures under the PLRA was to create an administrative record for the court. Requiring exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court. This has the potential to reduce the number of inmate suits, and also to improve the quality of suits that are filed by producing a useful administrative record. Jones, 549 U.S. at 204. The MDOC requires prisoners to follow a three-step process to exhaust grievances. See Policy Directive 03.02.130 (effective July 9, 2007). A prisoner must first attempt to resolve a problem with the staff member within two business days of becoming aware of the grievable issue, unless prevented by circumstances beyond his or her control. Policy Directive 03.02.130 at ¶ P. If the issue is not resolved, then the grievant may file a Step I grievance on the prescribed form within five business days after the grievant attempted to resolve the issue with appropriate staff. Id. at ¶¶ P and R. The Policy Directive provides the following directions for completing grievance forms: The issues shall be stated briefly but concisely. Information provided is to be limited to the facts involving the issue being grieved (i.e., who, what, when, where, why, how). Dates, times, places and names of all those involved in the issue being grieved are to be included. Id. at ¶ R (emphasis in original). The prisoner must send the Step I grievance to the appropriate grievance coordinator. Id. at ¶ V. If the prisoner is dissatisfied with the Step I response, or does not receive a timely response, he must request the appropriate form and send it to the Step II Grievance Coordinator. Id. at ¶ BB. Finally, if a prisoner is dissatisfied with the Step II response, or does not receive a timely response, he must send a completed Step III grievance, using the appropriate form, to the Grievance and Appeals Section. Id. at ¶ FF.

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The MDOC records reflect that plaintiff raised the claims alleged in this action in a grievance filed against defendants and others on January 27, 2009. See grievance RMI 09-01-7224z (docket no. 17-4). This grievance was denied on February 4, 2009. Id. Plaintiff filed a Step II appeal, which was denied on February 23, 2009. Id. Plaintiff signed his complaint on February 19, 2009, while his Step II appeal was still pending before the prison officials. Id. Plaintiff's complaint was filed in this court on February 27, 2009, only four days after the Step II appeal was denied. Id. There is no evidence that plaintiff filed a Step III appeal. See James Armstrong Aff. (docket no. 17-5). Plaintiff's claim is clearly unexhausted. Because plaintiff failed to properly exhaust this grievance as required by the PLRA, see Jones, 549 U.S. at 218-19; Woodford, 548 U.S. at 90-93, defendants are entitled to dismissal of this action. III. Recommendation

For the reasons set forth above, I respectfully recommend that defendants' motion to dismiss (docket no. 16) be GRANTED and that this action be dismissed. Dated: December 14, 2009 /s/ Hugh W. Brenneman, Jr. HUGH W. BRENNEMAN, JR. United States Magistrate Judge

ANY OBJECTIONS to this Report and Recommendation must be served and filed with the Clerk of the Court within fourteen (14) days after service of the report. All objections and responses to objections are governed by W.D. Mich. LCivR 72.3(b). Failure to serve and file written objections within the specified time waives the right to appeal the District Court's order. Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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