Opinion
No. 3:02-CV-1698-L.
September 30, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. Stephen Allard ("Plaintiff") sues Defendants Don Anderson, the Sheriff of Hunt County, Texas; and Curtis Neal, a Jailer at the Hunt County Jail ("Hunt"); for violation of his civil rights pursuant to 42 U.S.C. § 1983. Defendants seek summary judgment on the grounds that (1) Plaintiff failed to exhaust his administrative remedies regarding unsafe and unsanitary prison conditions before he initiated this action and (2) certain claims that arose more than two years before he filed suit are barred by the statute of limitations. The findings, conclusions, and recommendation of the Magistrate Judge follow:
I.
Plaintiff alleges that as a result of the unsafe and unsanitary cell conditions in Hunt, he contracted boils, infections, hepatitis C, and a thyroid condition. He requests monetary compensation and asks that the unsanitary prison conditions be eliminated. Plaintiff has been incarcerated in Hunt approximately fifteen times in the past ten years. Plaintiff's allegations in this lawsuit involve almost every time he was incarcerated in Hunt, including his latest incarceration from July 20, 2000, through October 19, 2001. (Defs.' App. 00004.)
II.
The terms of 42 U.S.C. § 1997e(a), as amended by the Prison Litigation Reform Act of 1996 (" PLRA"), provide:
No action shall be brought with respect to prison conditions under § 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.
The United States Supreme Court held that "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). Even when the prisoner seeks relief not available in grievance proceedings, notably monetary damages, exhaustion is a prerequisite to suit. Booth v. Churner, 532 U.S. 731, 741 (2001). Congress provided in § 1997e(a) that an inmate must exhaust administrative remedies irrespective of the forms of relief sought and offered through administrative sources. Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001). When a prisoner fails to exhaust his administrative remedies before he files suit, without a valid excuse, defendants are entitled to judgment as a matter of law dismissing the prisoner's complaint. Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998).
The terms of § 1997e(a) do not impose exhaustion of administrative remedies as a prerequisite to subject matter jurisdiction. Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998). Accordingly, this Court has subject matter jurisdiction over Plaintiff's claims. Nevertheless, after Congress amended § 1997e(a), the Fifth Circuit Court of Appeals adopted a strict approach to the exhaustion requirement. See Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003). See also Richardson v. Spurlock, 260 F.3d 495, 499 (5th Cir. 2001) (affirming dismissal of inmate's § 1983 claim for failure to exhaust because the inmate "incorrectly filed an administrative appeal rather than a disciplinary appeal"); Wright, 260 F.3d at 358 (stating that "[n]othing in the [PLRA] . . . prescribes appropriate grievance procedures or enables judges, by creative interpretation of the exhaustion doctrine, to prescribe or oversee prison grievance systems.") (footnote omitted). Courts may not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise. See Booth, 532 U.S. at 741. On the other hand, the appellate court has also stated that the exhaustion requirement "may be subject to certain defenses such as waiver, estoppel, or equitable tolling." Days, 322 F.3d at 866, citing Wendell, 162 F.3d at 890.
Exceptions to the exhaustion requirement are rare. See, e.g., Days, 322 F.3d at 866 (holding administrative remedies to be unavailable if an inmate is unable to timely file because of physical injury and the grievance system rejects that inmate's subsequent attempts to file as untimely); Ferrington v. La. Dep't of Corrs., 315 F.3d 529, 532 (5th Cir. 2002) (rejecting a claim of exhaustion based on plaintiff's alleged blindness); Parker v. Adjetey, No. 03-40787, 2004 WL 330866 *1 (5th Cir. Feb. 20, 2004) (rejecting a claim of exhaustion based on an inmate's coma because, when he recovered, he did not attempt to file a grievance, even though the grievance would have been untimely).
Administrative remedies are deemed unavailable if (1) an inmate's untimely filing of a grievance is because of a physical injury and (2) the grievance system rejects the inmate's subsequent attempt to exhaust his remedies after the injury improves. Days, 322 F.3d at 868.
III.
Plaintiff claims Defendants most recently subjected him to deplorable cell conditions from July 20, 2000, through October 19, 2001. He claims, inter alia, that the cells were overcrowded; inmates were forced to sleep on the floor; the floors were sprayed with insecticides; the floor drains backed up and overflowed onto the floors; the sewage lines leaked causing germs on the floors; and the food trays, tables, and mattresses were contaminated. Plaintiff alleges that the last month he was in Hunt, he was in a ten-man cell and the inmates were forced to drink water out of the shower. (Complaint App. ¶ 6.) He alleges that these prison conditions caused him serious health problems and pain and suffering. ( Id. ¶ 8.) Plaintiff alleges that he had boils and infections and that antibiotics were prescribed for him. (Id. ¶ 13.) Four days after Plaintiff was transferred to the Texas Department of Criminal Justice Criminal Institutions Division (TDCJ-CID), an October 23, 2001 blood test showed that was suffering from hepatitis C. He urges that the disease was a result of the unsanitary and unsafe conditions in Hunt.
Hunt had a Grievance Procedure which provided for immediate review of emergency situations and for both formal and informal complaints. (Defs.' App. 00024.) Plaintiff was familiar with the Hunt grievance procedure because he had filed two grievances previously, one about the food and another about an overcharge for medicine. (Defs.' App. at 00014.) Both were resolved in his favor. ( Id.) Plaintiff admits that while he was housed in the allegedly unsanitary conditions in Hunt, he never mentioned the unsafe conditions to the prison authorities. He neither filed a grievance nor contacted the Texas Commission on Jail Standards, the entity which receives and handles inmate complaints. (Defs.' App. 00007-8.) He claims that he feared retaliation from the jailers. ( Id.)
Plaintiff defends his failure to exhaust his administrative remedies by urging that he could not have filed a grievance until he found out "the extent of his injuries" from the October 23, 2001 blood test. Plaintiff claims the Hunt grievance procedure was not available to him then because he had been transferred to TDCJ-CID. He bases this conclusion upon a letter he received when he tried to file a grievance on January 25, 2004, eighteen months after this action was filed and over two years after the challenged prison conditions allegedly existed. In response to a grievance letter to Sheriff Anderson, Plaintiff received a letter from counsel notifying him not to contact the Sheriff directly while this suit was pending and stating that "since [he was] not currently an inmate in the Hunt County Jail, [he was] not entitled to file any additional grievances with the jail." (Pl.'s Ex. A.)
The Hunt Grievance Procedure does not provide a time limit for the filing of grievances. Additionally, none of its provisions limit the grievance procedure to inmates incarcerated in Hunt at the time the grievance is filed. The letter Plaintiff lists as Exhibit A is hearsay and not competent summary judgment evidence to show that the Hunt grievance procedure was unavailable to Plaintiff. Moreover, the letter does not purport to address the time period relevant to exhaustion, i.e., July 20, 2000, the date of Plaintiff's latest incarceration in Hunt, through August 9, 2002, the date he filed this action.
The undisputed competent summary judgment evidence shows that while Plaintiff was still in Hunt, he knew that (1) the unsanitary conditions and other safety problems caused him serious health problems, pain, and suffering; and that (2) he had a more than de minimis injury, specifically infections and boils that had to be treated with antibiotics. Immediately thereafter, he knew about the hepatitis C. Plaintiff did not file a grievance while he was in Hunt or at any time before August 9, 2002, the date he initiated this action. Even if Plaintiff did not know "the full extent" of his injury while he was incarcerated in Hunt, he knew about the prison conditions that had made him sick. Plaintiff does not allege that an injury prevented him from filing a grievance regarding the alleged unsanitary prison conditions. Additionally, Plaintiff did not even attempt to file a grievance with the prison authorities before he brought suit. See Days, 322 F.3d at 868. Hence the administrative grievance procedure was not unavailable to him. This Court may not delve into the Hunt grievance system and speculate whether prison officials would have acted on the grievance if one had been filed. Taking the facts most favorably to Plaintiff, he did not even attempt to meet the statutory prerequisite that he exhaust his administrative remedies before filing suit. Therefore, Plaintiff failed to exhaust his administrative remedies pursuant to 42 U.S.C. § 1997e(a).
The Court need not reach Defendants' argument that many of Plaintiff's claims are barred by the statute of limitations.
RECOMMENDATION
The Court recommends that Defendants' Motion for Summary Judgment be granted. Defendants are entitled to judgment as a matter of law based upon Plaintiff's failure to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a).