Jefferson v. Roy et al

Filing 136

ORDER ADOPTING REPORT AND RECOMMENDATIONS. (See order) (Written Opinion). Signed by Judge Wilhelmina M. Wright on 8/26/2019. (RJE)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Bobby Earl Jefferson, Jr.,

Case No. 16-cv-3137 (WMW/SER)
Plaintiff,
ORDER ADOPTING REPORT AND
RECOMMENDATION

v.
Tom Roy et al.,
Defendants.

This matter is before the Court on the May 8, 2019 Report and Recommendation
(R&R) of United States Magistrate Judge Steven E. Rau.

(Dkt. 130.)

The R&R

recommends granting in part and denying in part Defendants’ motion for summary
judgment, dismissing this case without prejudice, and denying as moot Plaintiff’s motion
to compel discovery and motion to appoint an expert. Plaintiff filed timely objections to
the R&R, and Defendants responded.

For the reasons addressed below, Plaintiff’s

objections are overruled, the R&R is adopted, and this case is dismissed without prejudice.
BACKGROUND
The R&R contains a detailed recitation of the factual and procedural background of
this case. As relevant here, while he was incarcerated at the Minnesota Correctional
Facility in Stillwater (MCF-Stillwater), Plaintiff Bobby Earl Jefferson, Jr., worked in the
metal foundry. Jefferson alleges that he was exposed to harmful toxins while working at
the metal foundry.

In the six months after his release in January 2016, Jefferson

experienced chest pain and visited multiple hospitals to address the symptoms he attributes
to his work at the metal foundry.
Beginning in July 2016, Jefferson was incarcerated again. This time he was housed
at the Minnesota Correctional Facility in Lino Lakes (MCF-Lino Lakes). During this
period of incarceration, Jefferson met with medical staff at MCF-Lino Lakes after
experiencing difficulty breathing. In a September 7, 2016 letter that Jefferson sent to
several Minnesota Department of Corrections (DOC) officials, Jefferson wrote that “[t]he
following is a formal notice of grievance,” and proceeded to address his allegations
pertaining to the toxin exposure at the metal foundry at MCF-Stillwater. A DOC official
responded to Jefferson’s letter on September 26, 2016, with “factual information regarding
the environmental concerns” raised in Jefferson’s letter.
Five days earlier, on September 21, 2016, Jefferson commenced this lawsuit, under
42 U.S.C. § 1983, against Defendants DOC, Minncorr Industries, and several DOC
employees. Jefferson alleges that Defendants’ actions violated the Fifth Amendment,
Eighth Amendment, and Fourteenth Amendment to the United States Constitution. The
Court subsequently granted several Defendants’ motions to dismiss. But Jefferson’s
individual-capacity claims against twelve DOC employees remain. Defendants now move
for summary judgment and seek dismissal of the individual-capacity claims with prejudice.
The R&R recommends dismissing these remaining claims without prejudice based on
Jefferson’s failure to exhaust administrative remedies as required by the Prison Litigation
Reform Act (PLRA), 42 U.S.C. § 1997e. The R&R also recommends denying as moot
Jefferson’s motion to compel discovery and motion seeking appointment of an expert.
2

ANALYSIS
I.

Jefferson’s Objections

A district court reviews de novo those portions of an R&R to which an objection is
made and “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); accord Fed.
R. Civ. P. 72(b)(3); LR 72.2(b)(3).
Jefferson objects on several grounds to the R&R’s determination that he failed to
exhaust all available administrative remedies. As a threshold matter, Jefferson asserts that
the exhaustion requirement is inapplicable to his claims because he was not incarcerated
when he filed his amended complaint. Jefferson also argues, in the alternative, that an
administrative remedy was not available to him at MCF-Lino Lakes or his September 2016
letter satisfies the exhaustion requirement.
A.

Applicability of the Exhaustion Requirement

The Court first addresses Jefferson’s argument that the PLRA’s exhaustion
requirement does not apply to his claims because he was on parole when he filed the nowoperative amended complaint in this case. Under the PLRA, “[n]o action shall be brought
with respect to prison conditions under section 1983 . . . , 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).

This exhaustion

requirement applies only to individuals who are incarcerated or detained. It “does not apply
to plaintiffs who file § 1983 claims after being released from incarceration.” Nerness v.
Johnson, 401 F.3d 874, 876 (8th Cir. 2005).
3

Although the United States Court of Appeals for the Eighth Circuit has not
addressed whether the exhaustion requirement applies to a plaintiff who was incarcerated
at the commencement of the lawsuit and is released on parole while the lawsuit was
pending, see Barber v. Schmidt, No. 10-3317, 2011 WL 3476878, at *5 n.4 (D. Minn. July
12, 2011) (observing that Eighth Circuit has not addressed this issue), the majority of
circuits that have addressed this issue have concluded that the relevant time when
determining the applicability of the PLRA is the date when the lawsuit was filed. See, e.g.,
Williams v. Henagan, 595 F.3d 610, 618-19 (5th Cir. 2010); Berry v. Kerik, 366 F.3d 85,
87 (2d Cir. 2004); Cox v. Mayer, 332 F.3d 422, 424-25 (6th Cir. 2003); Dixon v. Page, 291
F.3d 485, 488-89 (7th Cir. 2002); Hopkins v. Addison, 36 F. App’x 367, 369 (10th Cir.
2002); Harris v. Garner, 216 F.3d 970, 972-80 (11th Cir. 2000) (en banc). As such, the
substantial weight of persuasive authority holds that the PLRA applies to lawsuits
commenced by an incarcerated plaintiff even when the plaintiff subsequently is released
from custody before the conclusion of the lawsuit.  
This holding is consistent with the plain language of the PLRA’s exhaustion
requirement, which applies to actions “brought . . . by a prisoner.” 42 U.S.C. § 1997e(a)
(emphasis added); see, e.g., Harris, 216 F.3d at 974 (concluding that the term “brought” in
the PLRA’s exhaustion provision refers to when the lawsuit was “commenced”); accord
United States ex rel. Carter v. Halliburton Co., 866 F.3d 199, 206 (4th Cir. 2017)
(collecting cases for the proposition that a plaintiff “brings” an action when they commence
a lawsuit). Notably, the Supreme Court of the United States has described the PLRA’s
exhaustion requirement as “a prerequisite to suit,” Porter v. Nussle, 534 U.S. 516, 524
4

(2002), and as a “precondition to bringing suit in federal court,” Woodford v. Ngo, 548 U.S.
81, 88 (2006) (characterizing petitioner’s prevailing argument). And as the Eleventh
Circuit reasoned in Harris, when enacting the PLRA, “Congress made confinement status
at the time of filing the criterion, because that is the point at which the difference in
opportunity costs was causing the problem Congress was trying to solve: the large number
of filings.” 216 F.3d at 978 (citing Christiansen v. Clarke, 147 F.3d 655, 658 (8th Cir.
1998)).
Here, the undisputed record reflects that Jefferson was incarcerated at MCF-Lino
Lakes when he filed this lawsuit on September 21, 2016. Jefferson was placed on
“Intensive Supervised Release” on September 29, 2016, but after law enforcement officers
apprehended him multiple times for absconding, he was incarcerated at MCF-Stillwater
from May 30, 2017 until October 11, 2017, at which time he was again placed on “Intensive
Supervised Release. After absconding once more, Jefferson was apprehended and has been
continuously incarcerated since December 2017, with an anticipated release date of
December 15, 2022. Jefferson filed his amended complaint in February 2017, during one
of his periods of “Intensive Supervised Release.” But consistent with the weight of the
prevailing legal authority addressed above, the date of Jefferson’s amended complaint has
no bearing on the applicability of the PLRA’s exhaustion requirement. And even if the
filing of the amended complaint were legally significant to this analysis, an amended
pleading “relates back to the date of the original pleading” if, as here, “the amendment
asserts a claim . . . that arose out of the conduct, transaction, or occurrence set out—or
attempted to be set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B).
5

Because Jefferson undisputedly was incarcerated when he commenced this lawsuit,
the PLRA’s exhaustion requirement applies to Jefferson’s claims. Jefferson’s objection to
the R&R on this basis is overruled.
B.

Availability of an Administrative Remedy

Jefferson next contends that an administrative remedy was unavailable to him. The
exhaustion requirement “is mandatory under the PLRA and . . . unexhausted claims cannot
be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007). The PLRA requires
prisoner plaintiffs to exhaust all “administrative remedies as are available.” 42 U.S.C.
§ 1997e(a) (emphasis added).

Administrative remedies are “available” even if the

plaintiff’s preferred form of relief is not available. Booth v. Churner, 532 U.S. 731, 73841 (2001). But administrative remedies are not “available” if prison officials have
prevented the plaintiff from exhausting those remedies, such as by failing to respond to
requests for grievance forms. Lyon v. Vande Krol, 305 F.3d 806, 808-09 (8th Cir. 2002).
Significantly, the PLRA “does not permit [a] court to consider an inmate’s merely
subjective beliefs, logical or otherwise, in determining whether administrative procedures
are ‘available.’ ” Id. at 809.
Jefferson maintains that he did not become aware of his injuries until after he was
released from MCF-Stillwater, at which point he no longer had access to MCF-Stillwater’s
formal grievance system. Defendants dispute the point in time at which Jefferson became
aware of his injuries, arguing that Jefferson was aware of the injuries before he was released
from MCF-Stillwater, at which time the DOC’s grievance procedures were available to

6

Jefferson.1 But assuming, without deciding, that Jefferson did not become aware of his
injuries until after his release from MCF-Stillwater, the record does not support Jefferson’s
argument that he could not use the DOC’s grievance procedures for the nearly three months
he was incarcerated at MCF-Lino Lakes, during which time he commenced this lawsuit.
Jefferson maintains that “he did not have any way of using” MCF-Stillwater’s grievance
system when he was incarcerated at MCF-Lino Lakes because that system applies only “to
the prison an inmate is currently in and its particular staff.” But the record evidence
contradicts Jefferson’s assertion. A copy of the DOC’s policy governing formal grievance
procedures, supported by the affidavit of a DOC employee familiar with those procedures,
indicates that an inmate is not limited to filing a grievance that pertains only to the facility
in which the inmate is incarcerated. That Jefferson may have subjectively believed
otherwise does not make the administrative procedures unavailable. See id. (that an inmate
“may have subjectively believed that there was no point in pursing administrative
remedies” is not relevant to whether administrative procedures were available). For these
reasons, Jefferson’s objection on this basis is overruled.
Jefferson also argues that an administrative remedy was not available to him
because prison officials did not tell him how to properly file a formal grievance. An
administrative remedy is unavailable if “prison administrators thwart inmates from taking
advantage of a grievance process through machination, misrepresentation, or intimidation.”

1

Defendants emphasize that, while at MCF-Stillwater, Jefferson initiated verbal
inquiries about the air quality, ventilation, and safety of the metal foundry. But this fact
alone does not establish that Jefferson was aware of the injuries underlying his Section
1983 claims at that time.
7

Ross v. Blake, 136 S.Ct. 1850, 1860 (2016). For example, an administrative remedy is
unavailable if prison officials fail to respond to requests for grievance forms, deny access
to the written administrative policy, or affirmatively mislead an inmate as to the proper
administrative procedure. See, e.g., Townsend v. Murphy, 898 F.3d 780, 783-84 (8th Cir.
2018); Lyon, 305 F.3d at 809. But Jefferson neither argues nor presents evidence that
prison officials thwarted him from using DOC’s formal grievance procedures through any
such machination, misrepresentation, or intimidation. Jefferson’s September 2016 letter
does not request grievance forms or instructions on how to file a formal grievance. And
the letter sent to Jefferson in response to his September 2016 letter does not include any
misrepresentations as to the formal grievance procedures. Jefferson suggests that prison
officials had an affirmative obligation to give him guidance as to the proper administrative
procedure, even when he has not expressly requested such guidance. But Jefferson has not
identified, and the Court is not aware of, any legal authority requiring prison officials to
affirmatively advise Jefferson how to revise his informal grievance letter into one that
complies with the prison’s administrative procedures. To the contrary, it is the inmate’s
burden to “exhaust administrative remedies in accordance with the prison’s applicable
procedural rules.”

Townsend, 898 F.3d at 783 (internal quotation marks omitted)

(alterations omitted). Jefferson’s objection on this basis is, therefore, overruled.
C.

Exhaustion of Administrative Remedies

Jefferson argues, in the alternative, that he exhausted his administrative remedies
because his September 2016 letter is a formal grievance that the DOC accepted.

8

To satisfy the PLRA’s exhaustion requirement, a prisoner must “properly” exhaust
the available administrative remedies. Jones, 549 U.S. at 205. Proper exhaustion requires
a prisoner to “complete the administrative review process in accordance with the applicable
procedural rules” because “the prison’s requirements . . . define the boundaries of proper
exhaustion.” Id. at 218 (internal quotation marks omitted). Here, the DOC’s formal
grievance policy requires an inmate to complete a specific formal grievance form, abide by
a 2-page limit, and attach a copy of all prior communications with prison officials that the
inmate used to attempt to informally resolve the grievance. Jefferson’s September 2016
letter fulfills none of these requirements. The fact that Jefferson’s letter begins by stating
that “[t]he following is a formal notice of grievance” does not render it compliant with
DOC’s formal procedures. See, e.g., King v. Dingle, 702 F. Supp. 2d 1049, 1067 (D. Minn.
2010) (holding that labeling an informal letter as a grievance did not constitute exhaustion
of prison’s formal grievance procedure).
Jefferson contends that the DOC was required to either accept his September 2016
letter as a formal grievance or return it with an explanation of the correct procedure.
According to Jefferson, because the DOC never returned the September 2016 letter with
instructions, Jefferson reasonably concluded that the DOC had accepted the letter as a
formal grievance and assumed that he had exhausted his administrative remedies. But the
record neither reflects that the DOC treated Jefferson’s September 2016 letter as a formal
grievance nor does it establish that it was reasonable for Jefferson to conclude that the full
administrative review process had been completed. Under the DOC’s grievance policy,
the processing of formal grievances includes a decision by the warden or the warden’s
9

designee either dismissing or affirming the grievance, a written notice of that decision
provided to the inmate, and an opportunity to appeal that decision. None of these
procedures occurred here.
In summary, Jefferson did not properly initiate the DOC’s administrative review
process, let alone “complete the administrative review process in accordance with the
applicable procedural rules,” before filing this lawsuit. Jones, 549 U.S. at 218 (emphasis
added) (internal quotation marks omitted). For this reason, Jefferson’s objection on this
basis is overruled.
II.

Clear Error Review

Because Jefferson does not specifically object to any other aspect of the R&R, the
Court reviews the remainder of the R&R for clear error.2 See Grinder v. Gammon, 73 F.3d
793, 795 (8th Cir. 1996) (per curiam); see also Fed. R. Civ. P. 72(b) advisory committee’s
note to 1983 amendment (“When no timely objection is filed, the court need only satisfy
itself that there is no clear error on the face of the record in order to accept the
recommendation.”); Montgomery v. Compass Airlines, LLC, 98 F. Supp. 3d 1012, 1017 (D.
Minn. 2015) (observing that objections to an R&R that “are not specific but merely repeat
arguments presented to and considered by a magistrate judge are not entitled to de novo

2

In their response to Jefferson’s objections, Defendants object to the R&R’s
recommendation that this action be dismissed without prejudice. Defendants were required
to file any objections to the R&R within 14 days after being served with a copy of the
R&R. 28 U.S.C. § 636(b)(1)(C); accord Fed. R. Civ. P. 72(b)(2); LR 72.2(b)(2).
Defendants failed to file timely objections, and the Court will not consider the untimely
objections raised in Defendants’ response brief.
10

review, but rather are reviewed for clear error”). Having carefully performed this review,
the Court finds no clear error and, therefore, adopts the R&R.
ORDER
Based on the R&R, the foregoing analysis and all the files, records and proceedings
herein, IT IS HEREBY ORDERED:
1.

Plaintiff’s objections, (Dkt. 132), are OVERRULED.

2.

The May 8, 2019 R&R, (Dkt. 130), is ADOPTED.

3.

Defendants’ motion for summary judgment, (Dkt. 96), is GRANTED IN

PART AND DENIED IN PART as addressed in the May 8, 2019 R&R, and this action
is DISMISSED WITHOUT PREJUDICE.
4.

Plaintiff’s motion to compel discovery, (Dkt. 108), and motion seeking

appointment of an expert, (Dkt. 119), are DENIED as moot.
LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: August 26, 2019

s/Wilhelmina M. Wright
Wilhelmina M. Wright
United States District Judge

11