Opinion
No. 4:97-CV-138
July 25, 2002
ORDER
In accordance with the opinion entered this date,
IT IS HEREBY ORDERED that defendants' motion for summary judgment (docket no. 125) is GRANTED and plaintiffs suit is DISMISSED for failure to exhaust administrative remedies.
OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983. This matter is before the court on defendants' motion for summary judgment pursuant to FED. R. CIV. P. 56 (docket no. 125).
Discussion
Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, which confers a private federal right of action against any person who, acting under color of state law, deprives an individual of any right, privilege or immunity secured by the Constitution or federal laws. Burnett v. Grattan, 468 U.S. 42, 45 n. 2 (1984); Stack v. Killian, 96 F.3d 159, 161 (6th Cir. 1996). Thus, to state a claim under § 1983, a plaintiff must allege two elements: (1) a deprivation of rights secured by the "Constitution and laws" of the United States, and (2) that the defendant deprived him of this federal right "under color of law." Jones v. Duncan, 840 F.2d 359, 360, 361 (6th Cir. 1988).
Procedural Background
Plaintiff has identified himself as a male-to-female preoperative transsexual, a condition sometimes referred to as gender dysphoria or Gender Identity Disorder (GID). Plaintiff has filed three previous federal suits regarding his treatment and housing by prison officials. See Johnson v. Brown, No. 4:91-CV-53 (W.D. Mich.), Johnson v. Opicka, No. 4:93-CV-10 (W.D. Mich.), and Johnson v. Adams. No. 4:95-CV-20 (W.D. Mich.) (the "1995 suit").
Plaintiff filed the present suit on October 21, 1997, naming as defendant Stanley Adams, warden of the Riverside Correctional Facility ("RCF"). In the original complaint, plaintiff referred to a certain settlement agreement made on the record in the 1995 suit on July 14, 1995. The settlement agreement incorporated a treatment plan prepared by the Health Services at RCF. Hearing Trans. at 2-3. Under the agreement, plaintiff could be housed with a prisoner with a similar diagnosis, a roommate of plaintiffs choice or a single occupancy cell. Id. at 3. In this regard, plaintiff asked not to be housed with a "flamboyant homosexual," although the definition of "flamboyant homosexual" is not entirely clear from the record. Id. at 3-7. Plaintiff also expressed concerns that he would be transferred in retaliation for filing the lawsuit. Id. at 7-8. In response to this concern, the warden and his attorney represented that there was no immediate plan to transfer plaintiff to another prison or to transfer him because he filed the lawsuit. Id. at 8.
Defendant Adams has since died and the present warden substituted in his place.
A copy of the hearing transcript is attached to plaintiffs third supplemental complaint as Exhibit A.
The court subsequently entered an order stating that "the parties placed on the record their mutual understanding of how the issue of double-bunking would be handled by the Michigan Department of Corrections and Riverside Correctional Facility with respect to plaintiff" Johnson v. Adams, 4:95-CV-20 (W.D. Mich.) (Order, July 14, 1995). The court's order also stated:
Finally, this Court will administratively close this matter, subject to being reopened within one year of the date of this Order. This closing is in the interest of the effective administration of the Court's business, without prejudice to either party to this action. This closing is for administrative purposes only and does not constitute a decision on the merits. The Court will reopen this action upon notice of either party within the next twelve months. Any such motion need only refer to this order, and it will be granted.
Id. The case was administratively closed on July 14, 1995 and plaintiff has never moved to reopen the action.
In the original complaint in the present action, plaintiff sought money damages and injunctive relief based upon the placement of a "flamboyant homosexual" in his cell, which plaintiff alleged violated the July 14, 1995 agreement. Complaint (Oct. 21, 1997). Plaintiff also alleged that he had been housed at security level IV although classified at security level I. Id. Plaintiff further alleged that the Michigan Department of Corrections ("MDOC") and wardens at RCF had historically dealt with the medical and security issues created by his transsexuality by providing plaintiff a single cell, making available private showering and bathroom facilities and by adopting a policy relating to transsexuals.
Plaintiff filed a First Amended Complaint in the present action on January 28, 1998 pursuant to FED. R. CIV. P. 15(a). In this amended complaint, plaintiff added the allegation that defendants transferred him to the Jackson Complex Cotton Facility ("Cotton Facility"). Plaintiff alleged that he was transferred on January 8, 1998 in retaliation for filing the present suit and assaulted the next day by one of his "known enemies" at the Cotton Facility. On May 1, 1998, the magistrate judge assigned to the case recommended dismissal for failure to exhaust available administrative remedies. The court rejected the recommendation and determined that plaintiff had exhausted his claims. See Order dated June 29, 1998.
Plaintiff, through his appointed counsel, subsequently filed a "Consolidated and restated complaint and supplemental complaint, amended to add additional defendant." This pleading added defendant Bolden, and alleged four counts against defendants: breach of the 1995 agreement; violation of plaintiffs Eighth Amendment right to personal safety; violation of plaintiffs Eighth Amendment right to medical treatment; and, retaliation under the First, Fifth, Eighth and Fourteenth Amendments.
On June 9, 2000, the court substituted defendant Price, in her official capacity as warden, for defendant Adams, who presumably retired. Plaintiff subsequently gave notice that Adams, still a defendant in his individual capacity, had died and pursuant to FED. R. CIV. P. 25(a)(1) stated he intended to join defendant Adams' estate as a party defendant, although he never did. On March 23, 2001, plaintiff filed a "Second supplemental consolidated and restated complaint," which added defendant Price, in her capacity as the successor warden to defendant Adams, as well as the claim that defendants' improperly listed plaintiff as an offender on the Michigan Sexual Offender Registry. The court subsequently dismissed plaintiffs personal claims against defendant Adams as moot.
The relevant allegations presently before the court are set forth in plaintiffs Third Supplemental Consolidated and Restated Complaint ("third supplemental complaint") filed on June 20, 2001. The third supplemental complaint contains four counts. In Count I, plaintiff alleged that defendants Adams and Bolden breached the terms of the 1995 settlement agreement. In Count II, plaintiff alleged that defendants violated his Eight Amendment right to personal safety, by intentionally and deliberately placing him at risk of personal injury; by housing him with prisoners with known histories of sexual assault or flamboyant homosexuality; by transferring him to the Cotton facility; by housing plaintiff with corrections staff and inmates responsible for past threats and injury to plaintiff; by refusing plaintiffs recommendations for housing with prisoners that would not have presented the same risks as those chosen by defendants; by threatening to transfer plaintiff for pursuing grievances related to the treatment issue and by falsely labeling plaintiff a sex offender. In Count III, plaintiff alleged that defendant's violated his Eighth Amendment right to appropriate medical treatment, including housing accommodations designed to adequately deal with his GID. Finally, in Count IV, plaintiff alleged that defendants violated his First, Fifth, Eighth and Fourteenth Amendment rights by retaliating against plaintiff for filing grievances and lawsuits to resolve concerns of the adequacy of his housing and medical treatment and because of plaintiffs status as a person with GID.
Defendants now move for summary judgment on all counts of plaintiffs third supplemental complaint. First, defendants contend that plaintiffs suit should be dismissed for failure to exhaust his administrative remedies. Second, defendants contend that they are entitled to qualified immunity because plaintiff has no Eighth Amendment right to personal safety or to the alleged medical treatment. Third, defendants contend that plaintiff has no cause of action for retaliation. Fourth, defendants contend that the court should not exercise pendent jurisdiction over the breach of contract claim.
Standard
As the Sixth Circuit has noted, the federal courts have entered a "new era" in summary judgment practice. Cox v. Kentucky Dep't of Transp., 53 F.3d 146, 150 (6th Cir. 1995); Street v. J.C. Bradford Co., 886 F.2d 1472, 1478-81 (6th Cir. 1989). While preserving the constitutional right of civil litigants to a trial on meritorious claims, the courts are now vigilant to weed out fanciful, malicious, and unsupported claims before trial. Summary judgment is appropriate when the record reveals that there are no issues as to any material fact in dispute and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1009 (6th Cir. 1997) (en banc); Sable v. General Motors Corp., 90 F.3d 171, 175 (6th Cir. 1996); Payne v. Board of Education, 88 F.3d 392, 397 (6th Cir. 1996) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). The standard for determining whether summary judgment is appropriate is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." See Adcox v. Teledvne, Inc., 21 F.3d 1381, 1385 (6th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 251-52); see also, Henderson v. Ardco, Inc., 247 F.3d 645, 649 (6th Cir. 2001); Napier v. Madison County, Ky., 238 F.3d 739, 741 (6th Cir. 2001).
The court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Napier, 238 F.3d at 741. The party moving for summary judgment bears the initial burden of pointing out to the district court that there is an absence of evidence to support the nonmoving party's case, but need not support its motion with affidavits or other materials "negating" the opponent's claim. Moore v. Phillp Morris Companies, Inc., 8 F.3d 335, 339 (6th Cir. 1993). Once defendants show that "there is an absence of evidence to support the nonmoving party's case," plaintiff has the burden of coming forward with evidence raising a triable issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To sustain this burden, plaintiff may not rest on the mere allegations of his pleadings. FED. R. CIV. P. 56(e); Campbell v. Grand Trunk Western R.R., 238 F.3d 772, 775 (6th Cir. 2001); Cox, 53 F.3d at 150. A party opposing a motion for summary judgment has the burden to come forth with requisite proof to support his legal claim, particularly where he has had an opportunity to conduct discovery. See Noble v. Chrysler Motors Corp., 32 F.3d 997, 999 (6th Cir. 1994); Street v. J.C. Bradford Co., 886 F.2d at 1478-81; Booker v. Brown Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989). In so doing, plaintiff must set forth specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. 56(e); see McKenzie v. Bellsouth Telecomm., Inc., 219 F.3d 508, 512 (6th Cir. 2000); Mounts v. Grand Trunk Western R.R., 198 F.3d 578, 580 (6th Cir. 2000). Applying these standards, defendants' motion for summary judgment will be granted upon all plaintiffs federal claims.
Discussion
1. Exhaustion
Defendants contend that plaintiffs complaint should be dismissed because he filed this lawsuit prior to exhausting available administrative remedies as required by 42 U.S.C. § 1997e(a). Exhaustion is a statutory precondition to bringing suit. See § 1997e(a) ("[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"). Exhaustion of available administrative remedies must be shown regardless of the form of relief available through the administrative process. "One `exhausts' processes, not forms of relief." Booth v. Churner, 121 S.Ct. 1819 (2001).
"Prison conditions" are broadly defined. "The scope of § 1997e(a)'s exhaustion requirement is determined by the definition of a `civil action with respect to prison conditions' as set forth in [18 U.S.C.] § 3626(g)(2)." Freeman v. Francis, 196 F.3d 641, 644 (6th Cir. 1999); see Hartsfield v. Vidor, 199 F.3d 305, 308 (6th Cir. 1999). Section 3626(g)(2) provides: "The term `civil action with respect to prison conditions' means any civil proceeding arising under federal law with respect to the conditions of confinement or the effects of actions taken by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison." 18 U.S.C. § 3626 (g)(2).
The exhaustion requirement, while not jurisdictional, is mandatory and must be addressed in the first instance by the district court in all prisoner civil rights cases before the merits of the case are addressed. See Curry v. Scott, 249 F.3d 493, 501 n. 2 (6th Cir. 2001); Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir. 1999); Brown v. Toombs, 139 F.3d 1102, 1104 (1998); see also Robinson v. Shewalter, No. 00-3211, 2000 WL 1829118, at *1 (6th Cir. Dec. 6, 2000)("Before the district court adjudicates any claim set forth in the plaintiffs complaint, the court must determine that the plaintiff has complied with the exhaustion requirement."); Fish v. Sapp, No. 99-6665, 2001 WL 111671 (6th Cir. Jan. 29, 2001) (vacating the district court decision on the merits and remanding the case with instructions to dismiss the complaint for lack of exhaustion).
The prisoner has the burden of demonstrating exhaustion of his available remedies. See Brown, 139 F.3d at 1104; see also Swenson v. Martin, No. 00-1900, 2001 WL 897423, at *1 (6th Cir. Aug. 3, 2001). The plaintiff must demonstrate exhaustion of his administrative remedies with regard to his claims against each named defendant. See Curry, 249 F.3d at 505 (rejecting a prisoner's argument that exhaustion of remedies with regard to each defendant imposed a heightened pleading standard, finding that "[t]he requirement that a prisoner file a grievance against the person he ultimately seeks to sue . . . only assures as envisioned under the PLRA, that the prison administrative system has a chance to deal with claims against prison personnel before those claims reach federal court.").
Here, defendants contend that none of plaintiffs claims were exhausted prior to the filing of this suit on October 21, 1997. Defendants' Brief at 11. Defendants specifically refer to three claims as unexhausted: RCF 97-10-01289-003E (assignment of an inappropriate cellmate); RCF 98-08-01314-021A (retaliation by housing at an improper security level); and RCF 99-11-01542-0080 (improperly listing plaintiff as a sex offender).
The first referenced grievance involved defendants' assignment of Allen Payne as plaintiffs cellmate. Plaintiff described Payne as an inappropriate cellmate, because Payne was an active homosexual. This claim formed the basis for plaintiffs original complaint filed in the present action. Defendants contend that plaintiff did not fully exhaust this claim prior to filing suit. However, as previously discussed, the court has already determined that plaintiff had exhausted this claim as of June 29, 1998. The court will not revisit this determination.
The second referenced grievance was filed on August 14, 1998, claiming that MDOC personnel, including defendant Bolden and former defendant Adams, retaliated against plaintiff by housing him at level IV rather than level II. There is no question that this grievance for retaliation was filed and exhausted during the pendency of the present suit. The Sixth Circuit has clearly stated that the prisoners "may not exhaust administrative remedies during the pendency of the federal suit." Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999). "[Plaintiffs] attempt to exhaust his available administrative remedies only after filing suit in federal court ignores the clear mandate of § 1997e(a) which requires exhaustion . . . prior to filing suit in federal court." Id., quoting Larkins v. Wilkinson, 1998 WL 89880 at *2 (6th Cir. Dec. 17, 1998) (unpublished). Plaintiff suggests that application of the rule would result in an immediate refiling of the exhausted claims. While this may be true, such refiling would occur in any case in which the prisoner exhausts remedies during the pendency of a suit. The fact that plaintiff may be required to reconsider and reformulate his pleadings to be consistent with the administrative record is not sufficient grounds for this court to ignore the exhaustion requirement and render the exhaustion mandate of § 1997e(a) meaningless.
The third referenced grievance was filed on November 5, 1999 against RUM Roy Krug, for improperly listing plaintiff as a sex offender in the state sex offender registry. Plaintiffs allegation that defendants improperly labeled him as sex offender is a significant issue raised within his Eighth Amendment claim. Indeed, plaintiff devoted a significant portion of his third supplemental complaint (i.e., ¶¶ 86-101) to this issue. Plaintiff received an amended step III response April 4, 2000, more than two years after filing the present suit. Because the grievance was exhausted during the pendency of the present suit, this exhaustion violates the rule set forth in Freeman.
Although the court allowed plaintiff to amend his complaint to include these allegations, the exhaustion issue was not specifically addressed at the time plaintiff filed the third supplemental complaint. In addition, defendants raised the exhaustion issue as an affirmative defense.
Furthermore, this grievance did not name the present defendants. The MDOC employee grieved on the sex offender registry issue, RUM Roy Krug, is not a party to this litigation. Plaintiff must demonstrate exhaustion of administrative remedies with regard to his claims against each named defendant. See Curry, 249 F.3d at 505 (6th Cir. 2001). Accordingly, plaintiff has failed to exhaust this claim against the defendants.
The court's June 29, 1998, order determined that plaintiffs existing claims were exhausted. However, plaintiff failed to exhaust at least two other claims prior to filing suit. In addition, plaintiff has never exhausted his claim that defendants are improperly treating him as a sex offender. Dismissal of a prisoner's § 1983 complaint is appropriate where a prisoner files a "mixed" complaint, containing both exhausted and unexhausted claims. See Julian-Bey v. Crowley, No. 00-2313, 2001 WL 1555950 at *2 (6th Cir. Dec. 3, 2001), citing Freeman, 196 F.3d at 645. Accordingly, plaintiffs suit will be dismissed without prejudice for failure to exhaust administrative remedies.
Conclusion
For the reasons set forth above, defendants' motion for summary judgment under FED. R. CIV. P. 56 (docket no. 125) will be GRANTED.