Russell v. Ray et al

Filing 42

MEMORANDUM AND OPINION as set forth in following order. Signed by District Judge R Leon Jordan on 9/17/14. (c/m)(ABF)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

COREY FERNANDO RUSSELL,
Plaintiff,
v.
DAVID RAY, et al.,
Defendants.

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No.: 3:13-cv-158-RLJ-CCS

MEMORANDUM

This is a pro se prisoner's civil rights action pursuant to 42 U.S.C. § 1983. The
matter is before the Court on the motion to dismiss filed by the defendants. Plaintiff has
not filed a response to the motion to dismiss and the Court deems plaintiff to have waived
his opposition to the dispositive motion. Elmore v. Evans, 449 F. Supp. 2, 3 (E.D. Tenn.
1976), aff'd mem., 577 F.2d 740 (6th Cir. 1978); E.D.TN. LR7.2. For the following
reasons, the motion to dismiss [Doc. 23] will be GRANTED and this action will be
DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies.
Plaintiff is in the custody of the Tennessee Department of Correction. He brought
this action during his confinement in the Claiborne County Detention Center.

The

defendants are Claiborne County Sheriff David Ray and other correctional officials
employed at the Claiborne County Detention Center. The complaint alleges numerous
violations of plaintiff's constitutional rights, including but not limited to, denial of

medical care, racial slurs, and interference with legal mail. The defendants move to
dismiss the complaint based upon plaintiff's failure to exhaust his administrative
remedies.
Pursuant to the Prison Litigation Reform Act (PLRA), before a prisoner may bring
a civil rights action pursuant to 42 U.S.C. §1983, he must exhaust all available
administrative remedies. 42 U.S.C. § 1997e. "There is no question that exhaustion is
mandatory under the PRLA and that unexhausted claims cannot be brought in court."
Jones v. Bock, 549 U.S. 199, 211 (2007) (abrogating the Sixth Circuit's rule that plaintiffs
must plead administrative exhaustion and holding that failure to exhaust administrative
remedies is an affirmative defense to be established by defendants). The exhaustion
requirement of the PLRA is one of "proper exhaustion." Woodford v. Ngo, 584 U.S. 81,
93 (2006). This means the prisoner plaintiff must have completed "the administrative
review process in accordance with the applicable procedural rules, including deadlines, as
a precondition to bringing suit in federal court." Id. at 88.
In his complaint, plaintiff answered yes to the question of whether he presented
the facts in his complaint in the prisoner grievance procedure and stated that the steps he
took were "A request, institutional grievance." [Doc. 2, Complaint, p. 2]. He did not
attach copies of any grievances or other administrative proceedings.
In support of the motion to dismiss, the defendants have submitted the affidavit of
Larry Martin. [Doc. 24, Affidavit of Larry Martin]. He testifies that he is the Operations
Lieutenant for the Claiborne County Jail and oversees the grievance process for the jail.
[Id. at 1]. Attached to Mr. Martin's affidavit are two grievances filed by plaintiff, one of
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which concerns being lock-down after a fight and the other about having to return to his
cell for breakfast. [Id., Exhibits B and C, respectively]. Mr. Martin testifies, correctly,
that "neither of those grievances related to any event addressed in his Complaint." [Id. at
2]. As noted, plaintiff has not responded to the motion to dismiss.
This case will be DISMISSED WITHOUT PREJUDICE for failure to exhaust
administrative remedies. The Court will CERTIFY that any appeal from this action
would not be taken in good faith and would be totally frivolous. See Fed. R. App. P. 24.

AN APPROPRIATE ORDER WILL ENTER.

s/ Leon Jordan
United States District Judge

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