McGuinness v. Missouri Department of Corrections et al

Filing 38

REPORT AND RECOMMENDATION that 11 MOTION to dismiss case Failure to state a claim filed by Correctional Medical Services be denied, without prejudice; 33 MOTION to dismiss case filed by Missouri Department of Corrections, Missouri Departme nt of Probation and Parole, 9 MOTION to dismiss case Failure to Exhaust filed by Correctional Medical Services, 30 MOTION to dismiss case for Failure to Exhaust filed by Mental Health Management be granted and claims be dismissed, without prejudice, pursuant to 42 U.S.C. 1997e. Objections to R&R due by 2/17/2009. Signed by Magistrate Judge William A. Knox on 2/26/2009. (skb)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION MATTHEW J. McGUINNESS, Register No. 1051477, Plaintiff, v. MISSOURI DEPARTMENT OF CORRECTIONS, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) No. 08-4162-CV-C-SOW REPORT, RECOMMENDATION AND ORDER Plaintiff Matthew J. McGuinness, an inmate confined in a Missouri penal institution, br ought this case under the Civil Rights Act of 1871, 42 U.S.C. 1983, and its corresponding jur isdictional statute, 28 U.S.C. 1343. 1 Befor e the court are the motions of defendants arguing plaintiff has failed to exhaust his administr ative remedies on his claims, as required by 42 U.S.C. 1997e, and that his allegations fail to state a claim on which relief may be granted under 42 U.S.C. 1983. Plaintiff has filed suggestions in opposition. Title 42 U.S.C. 1997e(a) provides that "[n]o action shall be brought with respect to pr ison 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 ar e available are exhausted." Exhaustion of all administrative remedies as set forth by the Missour i Department of Corrections Offender Grievance Procedures must be completed prior to a prisoner filing suit. See Johnson v. Jones, 340 F.3d 624, 628 (8th Cir. 2003) (dismissal is r equir ed under section 1997e(a) if an inmate has failed to exhaust all available administrative r emedies prior to filing suit). When multiple prison conditions claims have been joined, the This case was referred to the undersigned United States Magistrate Judge for pr ocessing in accord with the Magistrate Act, 28 U.S.C. 636, and L.R. 72.1. 1 plain language of section 1997e(a) requires that all available prison grievance remedies must be exhausted as to all claims on which a prisoner is seeking relief. Graves v. Norris, 218 F.3d 884, 885 (8th Cir. 2000) (per curiam). Exhaustion of all administrative remedies means that a pr isoner must use all steps that the Department of Corrections requires and must follow such steps properly. Woodford v. Ngo, 548 U.S. 81 (2006) (section 1997e(a) requires proper exhaustion of administrative remedies). A prisoner must complete the administrative review pr ocess in accordance with applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court. Id. Pursuant to the March 11, 2005, Missouri Department of Cor r ections Offender Grievance Procedures, an offender has exhausted the grievance process, upon receipt of a grievance appeal response. See Missouri Department of Corrections Manual, D5-3.2, Offender Grievance, No. III(M)(12) (March 11, 2005). In the instant case, plaintiff's allegation that he initially filed an IRR but did not receive a response to the IRR because his caseworker "abandoned it," is not sufficient to allow plaintiff to proceed with filing a federal lawsuit prior to exhaustion. The court takes judicial notice that Missouri Department of Corrections (MDOC) has a procedure manual which states that the "[e]xpiration of the response time limit at any stage of the process shall allow the gr ievance to move to the next stage of the process by notifying the grievance officer." MDOC Dept. Manual D5-3.2, Offender Grievance (March 11, 2005), Nos. III (K)(9), and (L)(18). Plaintiff had the opportunity, pursuant to the prison grievance procedure manual, to continue with his claims to the point of administrative exhaustion. Ther efor e, because plaintiff failed to exhaust administrative remedies as to his claims pr ior to the filing of this federal lawsuit, his claims should be dismissed, without prejudice, pur suant to 42 U.S.C. 1997e. Plaintiff is advised that if he refiles this suit after exhausting his administrative r emedies, he will be required to pay the full filing fee. 28 U.S.C. 1915 (as amended Apr. 26, 1996). Installment payments are permitted if plaintiff is granted leave to proceed in forma pauper is. In light of this recommendation, the alternative argument of defendant Correctional Medical Services for dismissal based on failure to state a claim will not be addressed. If this 2 r ecommendation is not adopted by Judge Wright, consideration will be given to the argument of failure to state a claim. Additionally, there is no basis for granting plaintiff's motion for appointment of counsel. Further, plaintiff's motion of December 4, 2008, to stay this case until January 2009 is moot. IT IS, THEREFORE, ORDERED that plaintiff's motion to stay proceedings in this case until January 2009 is moot. [34] It is further ORDERED that plaintiff's motion seeking appointment of counsel is denied, without pr ejudice. [28] It is further RECOMMENDED that defendants' motions seeking dismissal of plaintiff's claims for failure to exhaust administrative remedies be granted and plaintiff's claims be dismissed, without prejudice, pursuant to 42 U.S.C. 1997e. [9, 30, 33] It is further RECOMMENDED that the motion of defendant Correctional Medical Services to dismiss for failure to state a claim be denied, without prejudice. [11] Under 28 U.S.C. 636(b)(l), the parties may make specific written exceptions to this r ecommendation within twenty days. The District Judge will consider only exceptions to the specific proposed findings and recommendations of this report. Exceptions should not include matters outside of the report and recommendation. Other matters should be addressed in a separ ate pleading for consideration by the Magistrate Judge. The statute provides for exceptions to be filed within ten days of the service of the r epor t and recommendation. The court has extended that time to twenty days, and thus, additional time to file exceptions will not be granted unless there are exceptional cir cumstances. Failure to make specific written exceptions to this report and recommendation will result in a waiver of the right to appeal. See L.R. 74.1(a)(2). Dated this 26th day of January, 2009, at Jefferson City, Missouri. / s/ William A. Knox 3 WILLIAM A. KNOX United States Magistrate Judge

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