Opinion
No. 01-CV-10109-BC.
February 25, 2002
This case had been referred to Magistrate Judge Charles E. Binder for general case management. The matter is now before the Court on the Report and Recommendation of the Magistrate Judge that the plaintiffs complaint be dismissed sua sponte without prejudice for failure to exhaust administrative remedies. The plaintiff has filed objections to the Report and Recommendation. After reviewing the Report and Recommendation de novo and the plaintiffs objections thereto, the Court agrees with the finding of the Magistrate Judge that the plaintiff has failed to exhaust his administrative remedies, and that this case must be dismissed sua sponte without prejudice.
I.
The plaintiff, Michael Eckert, is currently incarcerated under the authority of the Michigan Department of Corrections ("MDOC") at the Cooper Street Correctional Facility in Jackson, Michigan. The plaintiff filed this pro se prisoner civil rights complaint under 42 U.S.C. § 1983 on March 19, 2001. The complaint alleges that while incarcerated in Virginia on September 27, 1999, he was assaulted by another prisoner and suffered a broken nose. The plaintiff asserts that his Eighth Amendment rights were violated after the assault when he had to wait three days for hospitalization and did not receive adequate pain medication. The plaintiff also complains that although he was informed at the time that he would need a second surgery, he did not receive that surgery until November, 2000. He claims that he continues to experience unwarranted pain as a result of his injuries.
II.
The Magistrate Judge concluded that the prisoner plaintiff had failed to exhaust his administrative remedies under the Prisoner Litigation Reform Act ("PLRA"). See 42 U.S.C. § 1997e(a). Current federal law states that before any prisoner may file a civil rights suit challenging prison conditions, he must exhaust all internal administrative remedies. See 42 U.S.C. § 1997e(a). A prisoner's failure to demonstrate exhaustion of internal remedies is grounds for automatic dismissal. See Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998). The internal administrative procedures must be followed even if they do not oiler the precise relief that the prisoner seeks. See Booth v. Churner, ___ U.S. ___, 121 S.Ct. 1819, 1825 (2001). Dismissal without prejudice is required even if the time for filing the required grievance has expired. See Wright v. Morris, 111 F.3d 414, 417 n. 3 (6th Cir. 1997). A prisoner cannot abandon the grievance process before completion and then claim to have exhausted administrative remedies. Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999).
To demonstrate exhaustion of his administrative remedies, the Sixth Circuit requires that an inmate attach to his complaint copies of his tiled grievances — proof of exhaustion. Brown, 139 F.3d at 1104. Failure to provide this affirmative showing of exhaustion justifies dismissal of the plaintiffs complaint. See Curry v. Scott, 249 F.3d 493 (6th Cir. 2001) (affirming dismissal of prisoner-plaintiff's claims for failure to attach proof of exhaustion to his complaint, even though it appeared that to prisoner had in fact exhausted his administrative remedies). Where the prisoner has failed to attach the proper grievance farms to his complaint, this Circuit requires the Court to dismiss to prisoner's complaint on its own initiative. Brown, 139 F.3d at 1104.
The Magistrate Judge correctly explained that the MDOC has a multi-step grievance process in place. Each step has a time limit that can be waived with good cause, including a transfer to a different facility. First, within two business days, the prisoner must attempt verbally to resolve the dispute with those involved. If that fails, the inmate then must submit a Step I grievance within five days. The prison staff is required to respond within fifteen days. If the inmate is dissatisfied with the response, he may request a Step II appeal form within five days, and then has five additional — to submit it if an inmate is dissatisfied with the result at Step 14 he has ten business days to appeal to Step III, which concludes the grievance process. See generally MDOC Policy Directive 03.02.130.
Because the plaintiff did not attach grievance forms to his complaint the Magistrate Judge issued an order on September 27, 2001 explaining the importance of the exhaustion process and providing the plaintiff until November 1, 2001 to demonstrate that he had exhausted his administrative remedies regarding the claims and defendants in this suit. The plaintiffs responses indicated that he had filed a Step I grievance on October 27, 2000, and that his grievance was timely rejected on November 8, 2000. The plaintiff appealed the denial of his grievance to Step II on December 8, 2000, and received a Grievance Appeal Receipt from the grievance coordinator informing the plaintiff of the following:
Unless you are otherwise notified you should be provided a Step 11 response within 15 business days of the date your appeal was received or no later than 12/29/2000. If you have not received a response by this date or agreed to an extension, you may submit your Step III appeal to the Directors office.
The Magistrate Judge found that no Step III appeal was ever tiled. The plaintiff claimed that he did not file his Step III appeal because his was transferred to a different facility on December 8, 2000, and did not receive his response until February 8, 2001. At that point, the plaintiff says, he figured the grievance would be rejected as untimely in any event.
The Magistrate Judge found the plaintiffs excuse to be unavailing. First, the plaintiffs assumption of futility was unwarranted, as the MDOC grievance procedures specify that the time limits can be waived for good cause, including transfer. See MDOC PD 03.02.130(II)(G)(3). Second, the plaintiffs Grievance Appeal Receipt explicitly informed him that if he did not receive a response by December 29, 2000, he should consider his appeal denied and should promptly proceed to grieve his issue to Step III. Accordingly, because the plaintiff admitted that he had not filed a Step III grievance, and because the plaintiff did not show cause for failing to do so, the Magistrate Judge found that the plaintiff had failed to exhaust his administrative remedies.
In his objections, the plaintiff first complains that he did not receive his Grievance Appeal Receipt until January 16, 2001 and could not have known that he should have filed his Step III grievance as of December 29, 2000. Even if that is true, the plaintiff still could and should have filed his Step III appeal upon receiving the denial of his Step 11 grievance in February, 2001. MDOC regulations explicitly provide extensions for delays caused by a prisoner transfer. Second, the plaintiff cites Fifth Circuit law from the early 1990s stating that only "substantial effort" is required to meet the exhaustion requirement. Although that may have been true at the time these cases were decided, the decisions of the United States Court of Appeals for the Sixth Circuit, which are binding on this Court, have established that the PLRA, passed in 1995, changed the rules from substantial compliance to strict compliance. See Wyatt v. Leonard, 193 F.3d 876, 879-80 (6th Cir. 1999) (only substantial compliance with prison exhaustion procedures required before PLRA); Wolf v. Moore, 199 F.3d 324, 329 (6th Cir. 1999) (strict compliance now required). Because the events giving rise to the plaintiffs complaint took place after the passage of the PLRA, he is bound by the "strict compliance" standard. See Freeman, 196 F.3d at 644-45.
The plaintiff admits that he failed to appeal his grievance denial to Step ill, and he has provided no acceptable reason for doing so. As a result, the Magistrate Judge's sua sponte determination that the plaintiff had failed to exhaust his administrative remedies under the PLRA was correct and will be adopted.
III.
On February 14, 2002, the plaintiff filed a motion seeking reconsideration of the Court's denial of an earlier motion to appoint him counsel. This motion is not timely. The Court's Order was entered on July 19, 2001. Pursuant to statute and local rule, the plaintiff had ten days to file a timely motion for reconsideration. See 28 U.S.C. § 636(b)(1)(C); E.D. Mich. LR 72.1. The plaintiff does not attempt to provide good cause for the delay.
Accordingly, it is ORDERED that the Magistrate Judge's Report and Recommendation is ADOPTED.
It is further ORDERED that the plaintiffs complaint is DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies.
It is further ORDERED that defendant Oates's Motion to Dismiss [dkt #20] is DENIED AS MOOT.
It is further ORDERED that the plaintiffs Motion for Reconsideration for Appointment of Counsel [dkt #24] is DENIED.