Opinion
CIVIL ACTION No. 00-3112-KHV
September 20, 2001
MEMORANDUM AND ORDER
Plaintiff brings suit against Michael D. Crowell and Brian D. Fertig, both chaplains at the Federal Prison Camp in Leavenworth, Kansas ("FPC Leavenworth"), and James Phillips, corrections officer at FPC Leavenworth, for alleged violations of his constitutional right to freedom of religion. This matter is before the Court on Federal Defendants' Motion To Dismiss, Or, In The Alternative, Motion For Summary Judgment (Doc. #22) filed January 5, 2001. For reasons stated below, the Court sustains defendants' motion.
On May 29, 2001, the Court issued an order which notified plaintiff that it might consider defendants' motion under a summary judgment standard and allowed plaintiff to file a supplemental brief with supporting affidavits or other materials to controvert defendants' factual assertions. See Order (Doc. #28) filed May 29, 2001. On the same day, the United States Supreme Court decided Booth v. Churner, 121 S.Ct. 1819 (May 29, 2001), which mandates dismissal of plaintiffs claims for failure to exhaust administrative remedies. In light of Booth, it is not necessary to convert defendant's motion to one for summary judgment.
Motion To Dismiss Standard
A Rule 12(b)(6) motion should not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" GFF Corp. v. Assoc. Wholesale Grocers., Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The Court accepts all well-pleaded factual allegations in the complaint as true and draws all reasonable inferences from those facts in favor of plaintiff. See Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir. 1987). The issue in reviewing the sufficiency of plaintiffs complaint is not whether plaintiff will prevail, but whether plaintiff is entitled to offer evidence to support his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Although plaintiff need not precisely state each element of his claims, he must plead minimal factual allegations on those material elements that must be proved. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).The Court affords a prose plaintiff some leniency and must liberally construe the complaint. See Oltremari v. Kan. Soc. Rehab. Serv., 871 F. Supp. 1331, 1333 (D. Kan. 1994). While prose complaints are held to less stringent standards than pleadings drafted by lawyers, pro se litigants must follow the same procedural rules as other litigants. See Hughes v. Rowe, 449 U.S. 539 (1980); Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). The Court may not assume the role of advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
Analysis
Defendants assert that plaintiff has failed to exhaust administrative remedies under the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). Section 1997e(a) provides that "no 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." The exhaustion requirement is mandatory. See Booth v. Churner, 121 S.Ct. 1819, 1824-25 (2001); Yousef v. Reno, 254 F.3d 1214, 1221 (10th Cir. 2001). To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim based on prison conditions, an inmate must allege that he has exhausted all available administrative remedies. See Massey v. Wheeler, 221 F.3d 1030, 1034 (7th Cir. 2000); McAlphin v. Morgan, 216 F.3d 680, 682 (8th Cir. 2000); Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998); Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.),cert. denied, 525 U.S. 833 (1998); Overton v. Claussen, 65 F. Supp.2d 1165, 1166 (D. Colo. 1999); see also Basham v. Uphoff, No. 98-8013, 1998 WL 847689, at *4 (10th Cir. Dec. 8, 1998) (dismissal under § 1997e is made on pleadings; dismissal inappropriate if "plaintiff has alleged exhaustion with sufficient specificity") (quoting Underwood v. Wilson, 151 F.3d 292, 294 (5th Cir. 1998), cert. denied, 526 U.S. 1133 (1999)).
The Court notes that some courts classify exhaustion under Section 1997e(a) as an affirmative defense, see e.g., Massey 221 F.3d at 1034;Freeman v. Snyder, No. 98-636-GMS, 2001 WL 515258, at *5 (D. Del. Apr. 10, 2001), while others require inmates to allege exhaustion in the complaint as a precondition to suit, see e.g., 139 F.3d at 1104;Overton, 65 F. Supp.2d at 1166. The Court need not resolve the issue, however, because plaintiff's complaint would not survive a Rule 12(b)(6) motion under either standard. See Massey, 221 F.3d at 1034 (treating exhaustion requirement as affirmative defense, but affirming dismissal under Rule 12(b)(6)).
Plaintiff alleges that it would have been futile to exhaust administrative remedies. Specifically, plaintiff states that he submitted inmate request forms and talked to defendants several times concerning his claims, but that he "did not file administrative remedies as there would be a futile attempt to rectify the situation." Complaint (Doc. #1) filed April 5, 2000 at 3-4. Plaintiff further states that "[i]t would be futile to proceed in the grievance procedure." Id. at 4; see also plaintiff's Response To Summary Judgment Motion (Doc. #24) filed January 23, 2001 at 4 (arguing that futility exception applies to exhaustion requirement). In Booth, the Supreme Court expressly rejected the suggestion that a futility exception could relieve plaintiff from exhausting administrative remedies: "we stress the point . . . that we will not read futility or other exceptions into the statutory exhaustion requirements where Congress has provided otherwise." Booth, 121 S.Ct. at 1825 n. 6; see Yousef, 254 F.3d at 1221. Thus, on the face of the complaint, plaintiff has failed to state a claim upon which relief may be granted. IT IS THEREFORE ORDERED that Federal Defendants' Motion To Dismiss, Or, In The Alternative, Motion For Summary Judgment (Doc. #22) filed January 5, 2001 be and hereby is SUSTAINED. Plaintiff's claims are dismissed without prejudice for failure to exhaust administrative remedies.
In order to exhaust administrative remedies available to federal inmates, plaintiff must comply with the following requirements:
[He] must first complete an informal resolution of his complaint. See 28 C.F.R. § 542.13. The regulations permit an inmate to then "seek formal review (from the Warden] of an issue which relates to any aspect of [his] confinement." Id. § 542.10; See id. § 542.14. An inmate who is not satisfied with the Warden's response may appeal his complaint to the BOP's Regional Director. See id. § 542.15(a). "Finally, the inmate may appeal his case to the General Counsel in the Central Office of the Bureau of Prisons, which is the `final administrative appeal.'" Garret v. Hawk, 127 F.3d 1263, 1266 (10th Cir. 1997) (quoting 28 C.F.R. § 542.15 (a) (1997)), overruled on other grounds by Booth, [ 121 S.Ct. at 1819].Yousef, 254 F.3d at 1220.
Based on this ruling the Court does not reach the other arguments raised in Defendants' motion.
JUDGMENT IN A CIVIL CASE
DECISION BY THE COURT. This action came to decision by the Court. The issues have been considered and a decision has been rendered.IT IS ORDERED AND ADJUDGED that pursuant to the Memorandum And Order filed September 20, 2001, the Federal Defendants' Motion To Dismiss, Or, In The Alternative. Motion For Summary Judgment (Doc. #22) is SUSTAINED.