Opinion
Civil Action No. 01-3101-KHV
August 10, 2001
MEMORANDUM AND ORDER
Daniel Hysten, a former inmate at the Shawnee County Correctional Facility, has filed suit against the Shawnee County Department of Corrections, its director and two of its employees, Shawnee County, Kansas, and the Board of County Commissioners of Shawnee County. Plaintiff alleges that defendants violated his constitutional rights under the Eighth and Fourteenth Amendments and were negligent. This matter is before the Court on Plaintiffs' [sic] Motion To Amend Complaint (Doc. #14) filed June 11, 2001. For reasons stated below, plaintiff's motion is overruled.
Standards For Motion To Amend
The Court shall freely give plaintiff leave to amend "when justice so requires." Fed.R.Civ.P. 15. Motions to amend are matters of discretion for the trial court, see Woolsey v. Marion Labs., Inc., 934 F.2d 1452, 1462 (10th Cir. 1991), and a refusal to grant leave to amend should normally be justified by factors such as futility, undue delay, undue prejudice to the non-moving party, or bad faith of the moving party. See Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). A district court may deny a motion to amend as futile if the proposed amendment would not withstand a motion to dismiss or otherwise fails to state a claim. See Ketchum v. Cruz, 961 F.2d 916, 920 (10th Cir. 1992); Schepp v. Fremont County, 900 F.2d 1448, 1451 (10th Cir. 1990)).
Factual Background
On March 10, 1999, without provocation by plaintiff, correctional officers at the Shawnee County Correctional Facility beat and strangled plaintiff, causing him to sustain severe physical injuries. On March 15, 2001, plaintiff filed suit against defendants under 42 U.S.C. § 1983 and Kansas common law. Plaintiff alleges that defendants violated his constitutional right to be free from cruel and unusual punishment and that they were negligent because they failed to adequately train or supervise correctional officers. On May 24, 2001, the Court sustained defendants' motion to dismiss based on the statute of limitations, but granted plaintiff leave to file a motion to amend his complaint to allege grounds for tolling the statute of limitations. See Memorandum And Order (Doc. #13) at 3. On June 11, 2001, plaintiff filed his motion to amend. As of the date he filed his motion, defendant was in the custody of the Kansas Department of Corrections. See Proposed Amended Complaint ¶ 3, attached to Plaintiffs' [sic] Motion To Amend Complaint (Doc. #14) filed June 11, 2001. Defendants argue that plaintiff has not alleged that he exhausted administrative remedies or alleged facts sufficient to state a claim for tolling the limitations period.
Analysis
Defendants argue that plaintiff's proposed complaint does not allege that he exhausted administrative remedies. Section 1997e(a) states 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 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); Garrett v. Hawk, 127 F.3d 1263, 1265 (10th Cir. 1997). Because defendants served their response to plaintiff's motion to amend on July 9, 2001, any reply was due on July 23, 2001. See D. Kan. Rule 6.1(e)(1); Fed.R.Civ.P. 6(e). Plaintiff has not filed a reply brief. 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 proposed amended complaint does not allege that plaintiff has exhausted administrative remedies or explain any failure to exhaust. Absent such allegations, the Court must overrule plaintiff's motion to amend as futile. Because plaintiff may be able to correct this error, however, the Court grants plaintiff leave to file an amended complaint which adds allegations with regard to exhaustion of administrative remedies.
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., Toombs, 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)).
Because plaintiff's failure to allege exhaustion is dispositive, the Court need not address whether the complaint alleges facts sufficient to state a claim for tolling the limitations period. Defendants may renew that objection if and when plaintiff is able to allege that he has exhausted administrative remedies. The Court also notes that several of defendants' arguments with regard to tolling depend on facts which go beyond the pleadings and therefore are inappropriate on a motion to dismiss.
IT IS THEREFORE ORDERED that Plaintiffs' [sic] Motion To Amend Complaint (Doc. #14) filed June 11, 2001 be and hereby is OVERRULED. On or before August 24, 2001, plaintiff may file an amended complaint which adds allegations with regard to exhaustion of administrative remedies.