Chastine v. McCage

Filing 28

ORDER GRANTING DEFENDANTS MOTION TO DISMISS, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 3/17/17. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
PAUL CHASTINE,
Plaintiff,
VS.
MIKE MCCAGE,
Defendant.

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No. 16-1110-JDT-cgc

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

The pro se prisoner Plaintiff, Paul Chastine, filed this action pursuant to 42 U.S.C.
§ 1983 in the U.S. District Court for the Eastern District of Tennessee against Defendant
Mike McCage, alleging that McCage subjected him to excessive force on October 28, 2015,
while Plaintiff was incarcerated at the Northwest Correctional Complex in Tiptonville,
Tennessee. (ECF No. 2.) After process was served, Defendant filed a motion to dismiss for
lack of venue or, in the alternative, to transfer the case to this district. (ECF Nos. 17 & 18.)
The motion to dismiss also contended that dismissal was required on the basis that Plaintiff
failed to exhaust his administrative remedies prior to filing this action, thus depriving the
Court of subject matter jurisdiction. (Id.) On May 19, 2016, U.S. District Judge Thomas A.
Varlan granted Defendant’s alternative request to transfer the case to this district, where
venue is proper. (ECF No. 19.) However, he did not address Defendant’s contention that

Plaintiff had failed to exhaust his administrative remedies. (Id.) Plaintiff has not, at any
time, responded to the motion to dismiss or attempted to refute Defendant’s argument
regarding failure to exhaust.
Under 42 U.S.C. § 1997e(a), “[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.” See 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.”); Porter v. Nussle, 534 U.S. 516, 532 (2002) (“Even when the prisoner seeks relief
not available in grievance proceedings, notably money damages, exhaustion is a prerequisite
to suit.”). However, a prisoner is not required to demonstrate exhaustion in his complaint.
Jones, 549 U.S. at 216. Failure to exhaust is an affirmative defense on which the defendant
has the burden of proof. Risher v. Lappin, 639 F.3d 236, 240 (6th Cir. 2011); Napier v.
Laurel Cnty., Ky., 636 F.3d 218, 225 (6th Cir. 2011).
Section 1997e(a) requires not merely exhaustion of the available administrative
remedies, but proper exhaustion of those remedies, meaning that a prisoner must comply
with the institution’s “critical procedural rules,” such as time limits for filing grievances.
Woodford v. Ngo, 548 U.S. 81 (2006).
The benefits of exhaustion can be realized only if the prison grievance system
is given a fair opportunity to consider the grievance. The prison grievance
system will not have such an opportunity unless the grievant complies with the
system’s critical procedural rules. A prisoner who does not want to participate

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in the prison grievance system will have little incentive to comply with the
system’s procedural rules unless noncompliance carries a sanction . . . .
Id. at 95. See also Jones, 549 U.S. at 218.
“An inmate exhausts a claim by taking advantage of each step the prison holds out for
resolving the claim internally and by following the ‘critical procedural rules’ of the prison’s
grievance process.” Reed-Bey v. Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010). Thus, an
inmate who does not timely pursue all available levels of the grievance procedure has not
properly exhausted a particular claim. The Sixth Circuit requires prisoners “to make
‘affirmative efforts to comply with the administrative procedures,’ and analyzes whether
those ‘efforts to exhaust were sufficient under the circumstances.’” Risher, 639 F.3d at 240
(quoting Napier, 636 F.3d at 224). “[I]f the plaintiff contends he was prevented from
exhausting his remedies . . . the defendant [must] present evidence showing that the
plaintiff’s ability to exhaust was not hindered.” Surles v. Andison, 678 F.3d 452, 458 n.10.
(6th Cir. 2012).
The only reference to any grievance in Plaintiff’s pleading is in response to preprinted questions on the form complaint. In answer to the question, “Did you present the
facts relating to your Complaint in the prisoner grievance procedure?” Plaintiff checked
“yes.” (ECF No. 2 at 4.) However, he indicated only that he “place [sic] grievance in
grievance box” and that he “never received a response.” (Id.)
In support of the motion to dismiss, Defendant has offered the affidavit of Lolie Jones,
the Executive Assistant to the TDOC Deputy Commissioner. (Jones Aff., ECF No. 18-2.)

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Jones reviewed Plaintiff’s official TDOC grievance log in the Tennessee Offender
Management Information System, or TOMIS. (Id. ¶¶ 3-4.) TOMIS reflects that Plaintiff has
filed ten grievances since his incarceration began, but he has exhausted only one, #00299331,
which he filed on March 4, 2016. (Id. ¶¶ 7-8 & Ex. A.) Although Plaintiff filed a grievance
on October 27, 2015, one day before the date of the alleged assault by McCage, no other
grievance was filed until February 12, 2016. (Id. ¶ 11 & Ex. A.)
Defendant contends that Plaintiff has failed to exhaust his administrative remedy
because he has not demonstrated that he took any additional steps to inquire about the status
of the grievance he claims to have put in the grievance box regarding the alleged assault.
Plaintiff also has not contended that any prison official prevented him from exhausting his
grievance.
Because Plaintiff has not demonstrated that he exhausted his administrative remedy
with regard to his claim against the Defendant, the motion to dismiss is GRANTED. All
other motions are DENIED as moot.

Pursuant to 28 U.S.C. § 1915(a)(3), the Court must consider whether an appeal by
Plaintiff in this case would be taken in good faith. The good faith standard is an objective
one. Coppedge v. United States, 369 U.S. 438, 445 (1962). The test for whether an appeal
is taken in good faith is whether the litigant seeks appellate review of any issue that is not
frivolous. Id. The same considerations that lead the Court to dismiss this case for lack of
exhaustion also compel the conclusion that an appeal would not be taken in good faith.

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Therefore, it is CERTIFIED, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal in
this matter by Plaintiff would not be taken in good faith.
The Court must also address the assessment of the $505 appellate filing fee if Plaintiff
nevertheless appeals the dismissal of this case. A certification that an appeal is not taken in
good faith does not affect an indigent prisoner plaintiff’s ability to take advantage of the
installment procedures contained in § 1915(b). See McGore v. Wrigglesworth, 114 F.3d 601,
610-11 (6th Cir. 1997), partially overruled on other grounds by LaFountain v. Harry, 716
F.3d 944, 951 (6th Cir. 2013). McGore sets out specific procedures for implementing the
PLRA, 28 U.S.C. § 1915(a)-(b). Therefore, the Plaintiff is instructed that if he wishes to
take advantage of the installment procedures for paying the appellate filing fee, he must
comply with the procedures set out in McGore and § 1915(a)(2) by filing an updated in
forma pauperis affidavit and a current, certified copy of his inmate trust account for the six
months immediately preceding the filing of the notice of appeal.
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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