Opinion
Civil Action 2: 02-CV-983
March 18, 2003
OPINION AND ORDER
Plaintiff, a state prisoner, brings this action alleging that defendants denied him access to the courts by not allowing him to mail certain documents. The United States Magistrate Judge recommended that defendants' November 26, 2002 motion to dismiss be granted, concluding that plaintiff had failed to exhaust his administrative remedies as is required by 42 U.S.C. § 1997e. Report and Recommendation (January 28, 2003). This matter is now before the Court on plaintiff's motion for a stay of the proceedings, and on plaintiff's objection to the Report and Recommendation, which this Court will consider de novo. 28 U.S.C. § 636(b)(1); see also United States v. Shami, 754 F.2d 670 (6th Cir. 1985).
I. Background
Plaintiff is an inmate in the custody of the Ohio Department of Rehabilitation and Correction (hereinafter "ODRC") currently incarcerated at the London Correctional Institution (hereinafter "LoCI"). Complaint, at p. 2. Plaintiff has named as defendants two officers of the Ross Correctional Institution (hereinafter "RCI"), but refers in the body of the complaint only to defendant Clemins. Id., at p. 3.
Plaintiff alleges that, on November 22, 2000, he was prevented from accessing the courts. In particular, plaintiff alleges that, "I presented an envelope to the mail room containing paperwork concerning my appeal. The defendant [sic] would not mail out the paperwork because I had no funds in my account. . . ." Id. Plaintiff alleges that this delay caused his appeal to be denied. Id.
II. Discussion
A. Motion for Stay of the Proceedings
Section 1997e is mandatory and provides that, "[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 . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). An inmate has the burden of demonstrating that he has exhausted his available administrative remedies. Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998) cert. denied, 525 U.S. 833 (1998).
Plaintiff admits that he failed to exhaust his administrative remedies prior to filing suit in this action. Nevertheless, plaintiff now asks this Court to stay its proceedings so that he may now attempt to exhaust available administrative remedies. However, under § 1997e(a), an inmate "may not exhaust administrative remedies during the pendency of the federal suit." Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999). See also Lyons-Bey v. Curtis. (unreported) 2002 WL 203214 (6th Cir. 2002); Larkins v. Wilkinson, (table) 172 F.3d 48 (6th Cir. 1998); Treesh v. Taft, 122 F. Supp.2d 887, 890 (S.D. Ohio 2000). Therefore, plaintiff's request is without merit; he may not now, during the pendency of this action, attempt to exhaust his administrative remedies.
B. Objection to Report and Recomendation
On January 28, 2003 the Magistrate Judge concluded that plaintiff had not exhausted his available administrative remedies as required by § 1997e(a). Report and Recommendation, at pp. 2-3. Plaintiff does not dispute the fact that he has not exhausted his administrative remedies. Instead, plaintiff argues that it is not appropriate to dismiss an inmate's cause of action for failure to exhaust administrative remedies under Rule 12(b)(6). Plaintiff argues that, "[t]here is a distinct difference between failure to state a claim and failure to exhaust administrative remedies." Plaintiff's Motion for Reconsideration of . . . Report and Recommendation, at p. 2. Plaintiff contends that, while it may be appropriate to dismiss under Rule 12(b)(1), defendants have waived any such defense. For the following reasons, plaintiff's argument is without merit.
As was discussed supra, exhaustion is a necessary prerequisite to filing prisoner claims in federal court. Freeman, 196 F.3d at 645; see also Brown, 139 F.3d at 1104. When a prisoner files a civil rights complaint without first exhausting his administrative remedies, dismissal of the complaint is appropriate. Freeman, 196 F.3d at 645. Contrary to plaintiff's argument, however, the United States Court of Appeals for the Sixth Circuit has recognized that the exhaustion requirement is not jurisdictional. Tucker v. McAninch, 162 F.3d 1162 (6th Cir. 1998) (noting that § 1997e(a) "does not deprive the district court of subject matter jurisdiction, but merely directs dismissal of a complaint for lack of exhaustion"). Therefore, it is appropriate for a federal court to dismiss an inmate complaint under the provisions of Rule 12(b)(6), as opposed to Rule 12(b)(1), for failure to exhaust available administrative remedies.
Plaintiff also argues that § 1997e(a)(1) provides that a court may continue a case for a period not to exceed 180 days to allow a plaintiff to exhaust administrative remedies. Plaintiff's Motion for Reconsideration of . . . Report and Recommendation, at p. 3. However, § 1997e does not contain a subsection "(a)(1)," nor does § 1997e provide for a 180 day extension period. As was discussed supra, an inmate "may not exhaust administrative remedies during the pendency of the federal suit." Freeman, 196 F.3d at 645. Once plaintiff has exhausted his administrative remedies, he may always refile his complaint and plead exhaustion with sufficient detail, assuming that the relevant statute of limitations has not run. See Baxter v. Rose, 305 F.3d 486, 489 (6th Cir. 2002).
It appears that plaintiff is referring to a previous, superceded, version of § 1997e. The provisions to which plaintiff refers were replaced in 1996.
In light of the foregoing discussion, plaintiff's motion for a stay of the proceedings is DENIED. Further, plaintiff's objections to the Report and Recommendation are DENIED. The Report and Recommendation is ADOPTED and AFFIRMED. It is hereby ORDERED that defendants' motion to dismiss be GRANTED.
The Clerk shall enter FINAL JUDGMENT in this action.