Opinion
Case No. 05-22203-CIV-KING.
May 15, 2006
REPORT OF MAGISTRATE JUDGE
I. Introduction
This Cause is before the Court upon the Joint Motion to Dismiss tiled by the defendants Morris, Gibbs, Weatherspoon and Chery. [DE# 56].
On August 9, 2005, the plaintiff Stanley Jordan filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 concerning events that allegedly occurred at the Miami-Dade Pretrial Detention Center. [DE# 1]. The plaintiff has been granted leave to proceed in forma pauperis. [DE# 5].
The case remains pending against Ulysses Morris, Charles Gibbs, Irvin Witherspoon and Princeton Chery. [DE# 18 — Order adopting Preliminary Report]. These defendants were served on January 17, 2006. [DE#'s 29-32].
The plaintiff alleged that in October, 2003, when he was detained at the Pre-trial Detention Center, he requested that Chery, Gibbs and Witherspoon accommodate his special religious dietary needs for the month of Ramadan, and that these individuals denied his request. The plaintiff further alleged that in October, 2003 he spoke with the Chaplaincy Services Bureau, and with Chery, Gibbs, Morris and Witherspoon seeking religious accommodation to observe Jumu'ah, but this request was also denied. As a result, the plaintiff was unable to observe Jumu'ah for the duration of his detention at the Pre-trial Detention Center, and he was unable to observe the 2003 Ramadan according to the dictates of his religion.
The plaintiff also alleged that McCray and Aladro are responsible for the violation of his constitutional rights as supervisory officials, as the officers who failed to accommodate his religious needs were acting in accord with county policies. This claim has been dismissed.
The defendants move to dismiss the complaint on the following grounds:
1. The plaintiff is barred from recovery of damages pursuant to 42 U.S.C. § 1997e(a) because he has failed to exhaust his administrative remedies; and
2. The plaintiff is barred from recovery of damages pursuant to 42 U.S.C. § 1997e(e) because he seeks damages for mental and emotional injuries without alleging that he suffered physical injury.
II. Analysis
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may move to dismiss a complaint because the plaintiff has failed to state a claim upon which relief may be granted. See Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion questions the legal sufficiency of a complaint; therefore, in assessing the merits of a Rule 12(b)(6) motion, the court must assume that all the factual allegations set forth in the complaint are true. See, e.g., United States v. Gaubert, 499 U.S. 315, 327 (1991); Powell v. Lennon, 914 F.2d 1459, 1463 (11 Cir. 1990). Moreover, all factual allegations are to be construed in the light most favorable to the plaintiff. See, e.g., Brower v. County of Inyo, 489 U.S. 593, 598 (1989). Generally, "a complaint should not be dismissed for failure to state a claim 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." In re Johannessen, 76 F.3d 347, 349 (11 Cir. 1996) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
A. Exhaustion
The defendants argue that although the plaintiff alleged in the complaint that he filed inmate grievances, his allegations and attachments to the Operative Complaint demonstrate that he did not exhaust the administrative remedies available to him through the applicable grievance process.
The defendants are correct in arguing that under the exhaustion provision of the Prison Litigation Reform Act of 1995 (PLRA), 42 U.S.C. § 1997e(a), as enacted on April 26, 1996, the plaintiff is required to have fully exhausted his available administrative remedies prior to filing suit in federal court. See Porter v. Nussle, 534 U.S. 516 (2002); Alexander v. Hawk, 159 F.3d 1321 (11 Cir. 1998). The PLRA significantly altered a prisoner's right to bring civil actions in forma pauperis, and in pertinent part places new restrictions on a prisoner's ability to seek federal redress concerning the conditions of his confinement.
The current exhaustion requirement under § 1997e(a) was designed to reduce the quantity and improve the quality of prisoner suits, and affords corrections officials an opportunity to address complaints internally before allowing the initiation of a federal case; and in some instances corrective action taken in response to an inmate's grievance might improve prison administration and satisfy the inmate, thereby obviating need for litigation. Porter, 534 U.S. at 516-17. In other instances, the internal review may filter out some frivolous claims; and for cases ultimately brought to court, an administrative record clarifying the controversy's contours could facilitate adjudication. Id. at 517.
The term "available." as used in Section 1997e(a), does not mean that prison inmates must only exhaust their administrative remedies if the type of relief they seek is "available" within the administrative apparatus; instead, the term means that a prisoner must exhaust all administrative remedies that are available before filing suit, regardless of their adequacy.Alexander v. Hawk, supra at 1325-26; Harris v. Garner, supra at 1286. This means that an inmate who is seeking money damages as relief from defendants in a lawsuit must exhaust all of her administrative remedies before filing suit, even if money damages are not available as relief through the jail/prison grievance procedure. Alexander, supra; Moore v. Smith, 18 F.Supp.2d 1360, 1364 (N.D.Ga. 1998).
The Eleventh Circuit has held that "the judicially recognized futility and inadequacy exceptions do not survive the new mandatory exhaustion requirement of the PLRA," Alexander v. Hawk, supra, 159 F.3d at 1325-26; Harris v. Garner, supra at 1286. Where exhaustion is now a precondition to suit "the courts cannot simply waive those requirements where they determine that they are futile or inadequate," since "such an interpretation would impose an enormous loophole in the PLRA which Congress clearly did not intend," and because "[m]andatory exhaustion is not satisfied by a judicial conclusion that the requirement need not apply," Alexander, supra, at 1326 [citing, Weinberger v. Salfi, 422 U.S. 749, 766 (1975) (holding that where exhaustion is a statutorily specified jurisdictional prerequisite, "the requirement . . . may not be dispensed with merely by a judicial conclusion of futility")]. Cf. Qawi v. Stegall, et al., 211 F.3d 1270 [table case, published on Westlaw], No. 98-1402, 2000 WL 571919, at *1-2 (6 Cir. (Mich) May 3, 2000) (Circuit Court affirming district Court's dismissal of the complaint for lack of exhaustion, and noting that the dismissal was appropriate even though by time of the appeal the plaintiff's administrative remedies might have become time-barred) (citing Hartsfield v. Vidor, 199 F.3d 305, 309 (6 Cir. 1999); and Wright v. Morris, 111 F.3d 414, 417, n. 3 (6 Cir. 1997)).
The Courts have held that with enactment of the PLRA, 42 U.S.C. § 1997e(a), as amended, requires that a prisoner must have taken the appropriate procedural steps to exhaust his administrative remedies, i.e., that the prisoner must have exhausted the available administrative processes before bringing suit in federal court. Booth v. Churner, 532 U.S. 731, 736-41 (2001) (holding that "one `exhausts' processes, not forms of relief, and the statute provides that one must;" and further holding that "we think that Congress had mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures"); Miller v. Tanner, 196 F.3d 1190, 1193 (11 Cir. 1999) (incarcerated state prisoner must first comply with the grievance procedures established by the state department of corrections before filing a federal lawsuit under section 1983);Harper v. Jenkin, 179 F.3d 1311, 1312 (11 Cir. 1999) (rejecting plaintiffs argument that his administrative remedies should be deemed exhausted since his grievance was denied as untimely and any appeal therefrom would necessarily be denied; and affirming dismissal of civil rights suit for failure to satisfy mandatory exhaustion requirements, and in doing so holding that the appellant could not be considered to have exhausted his administrative remedies where he had not sought leave to file an out-of-time grievance, since to find otherwise would allow an appellant to simply ignore the PLRA's exhaustion requirement and still gain access to federal court merely by filing an untimely grievance).
Title 42 U.S.C. § 1997e, entitled Suits by Prisoners, provides:
(a) Applicability of administrative remedies
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 types of claims which fall within the purview of the statute are not limited to physical conditions encountered within the inmate's cell such as heating or cooling, limited space, or squalor. The kinds of claims raised by the plaintiff (unsanitary showers and denial of visitation and telephone use) in this case come under the statute. The Courts have held that a wide spectrum of claims constitute "prison conditions" for purposes of § 1997e.See Harper v. Jenkin, 179 F.3d 1311 (11 Cir. 1999) (prisoner medical claims); Booth v. Churner, et al., 206 F.3d 289 (3 Cir. 2000) (case involving excessive force by guards; in which the Court held that for purposes of the PLRA, conditions of confinement — in addition to complaints about things such as overcrowding, inadequate medical facilities, and inadequate law library facilities — also include denial of food, denial of heating, and denial of medical attention, because all such actions "affect the lives of prisoners similarly," and "make their lives worse"); La Vista v. Beeler, 195 F.3d 254 (6 Cir. 1999) (affirming district court's dismissal for lack of exhaustion of administrative remedies, where complaint alleged,inter alia, denial of medical care, sexual harassment, sexual assault, and destruction of personal property and retaliation during incarceration at FMC-Lexington); Wendell v. Asher, 162 F.3d 887, 891-92 (5 Cir. 1998) (claims, including use of force);Moore v. Smith, 18 F.Supp. 1360 (N.D.Ga. 1998) (abuse or excessive force by institutional officers).
Satisfaction of the exhaustion requirement is generally treated as a threshold issue, since the statutory mandate requires an inmate to have fully exhausted his or her available administrative remedies before bringing suit on a claim in federal court. See Alexander v. Hawk, 159 F.3d 1321 (11 Cir. 1998); Harris v. Garner, 190 F.3d 1279, 1286 (11 Cir. 1999). As discussed herein, the lack of exhaustion argument raised by the defendant pursuant to the PLRA, 42 U.S.C. § 1997e(a), is dispositive of any claims in this case.
The Court may only consider the statements in the Complaint in a motion to dismiss, must assume that all the factual allegations set forth in the complaint are true, see, e.g., United States v. Gaubert, 499 U.S. 315, 327 (1991); Powell v. Lennon, 914 F.2d 1459, 1463 (11 Cir. 1990), and must construe all factual allegations in the light most favorable to the plaintiff, see, e.g., Brower v. County of Inyo, 489 U.S. 593, 598 (1989). The plaintiff stated that he used the grievance procedure as follows: "first inmate request forms, then the inmate grievance form." The plaintiff has attached copies of grievances and related forms as exhibits to the Complaint.
Upon an initial review of the defendants' argument that the plaintiff did not fully exhaust his administrative remedies because he did not, inter alia, raise specific claims against the individual defendants herein, it appears that if the exhibits to the Complaint constitute the entirety of the plaintiff's use of the administrative grievance system, he probably did not comply with the PLRA's exhaustion rules and the Complaint should be dismissed. However, the Court cannot be certain that the exhibits to the Complaint accurately represent the plaintiff's attempts to exhaust administrative remedies, despite his failure to raise such in a response to the motion to dismiss. This fact, combined with the fact that the Court is mindful of the admonition of the Eleventh Circuit that district courts must normally convert motions to dismiss to motions for summary judgment, and give notice to the non-moving party, when it relies on any matters outside the pleadings: "We have "consistently enforced the strict notice requirements," thereby "creating a bright-line rule: If a district court fails to comply with the ten-day notice requirement, the case will be reversed and remanded so that the district court may provide the non-moving party with adequate notice." Brown v. Brock, 2006 WL 509563, *2 (11 Cir. March 3, 2006) (quoting Jones v. Auto. Ins. Co. of Hartford, Conn., 917 F.2d 1528, 1532 (11 Cir. 1990). Generally, in ruling on a motion to dismiss a complaint for failure to state a cause of action pursuant to Fed.R.Civ.P. 12(b)(6), matters outside of the four-corners of the complaint may not be considered. Milburn v. United States, 734 F.2d 762, 765 (11 Cir. 1984). When a court does rely upon matters outside of the complaint, the 12(b)(6) motion to dismiss converts into a motion for summary judgment. Fed.R.Civ.P. 12(b)(6). At that point, all parties must be notified of the conversion and given an opportunity to submit relevant evidence and arguments. Marine Coatings of Alabama, Inc. v. United States, 792 F.2d 1565, 1568 (11 Cir. 1986).
The stringent pleading requirement advocated by the defendants has not been adopted by the Eleventh Circuit, and most other circuits considering this issue have determined that the PLRA's exhaustion requirement does not impose such a strict pleading requirement on the prisoner but, rather, creates a defense that must be raised and proved by the defendant. At least five other circuits — the Second, Third, Seventh, Eighth and D.C. — have described exhaustion as an affirmative defense that must be raised and proved by the defendant. See Ray v. Kertes, 285 F.3d 287, 295 (3 Cir. 2002); Foulk v. Charrier, 262 F.3d 687, 697 (8 Cir. 2001); Jackson v. District of Columbia, 254 F.3d 262, 267 (D.C. Cir. 2001); Massey v. Helman, 196 F.3d 727, 735 (7 Cir. 1999); Jenkins v. Haubert, 179 F.3d 19, 28-29 (2 Cir. 1999). In the absence of specific direction from the Eleventh Circuit, this Court believes that, unless it is abundantly clear from the face of the complaint or attached exhibits that the plaintiff has failed to exhaust available administrative remedies, the lack of exhaustion is an affirmative defense that must be raised by the defendants and cannot be decided upon a motion to dismiss.
Accordingly, if the defendants wish to pursue a defense of lack of exhaustion, they should do so by filing a motion for summary judgment, with which may be attached affidavits and exhibits to provide evidence that the plaintiff failed to exhaust his administrative remedies.
It is therefore recommended that the defendant's motion to dismiss the complaint for lack of exhaustion of administrative remedies be denied.
B. Absence of Physical Injury
This claim is not barred by 42 U.S.C. § 1997e(e) because the plaintiff fails to allege that he suffered any physical injury as a result of the alleged First Amendment violation. This Circuit has not specifically discussed the interplay and the applicability of § 1997e(e) to the type of claim raised herein. The case of Harris v. Garner, 216 F.3d 970 (11 Cir. 2000) (en banc) (Harris II), cert. denied, 532 U.S. 1065 (2001) stands for the proposition that section 1997e(e) applies only to claims filed by an inmate while he is confined. The Harris II Court "reinstated that part of the [earlier panel] opinion [discussing the underlying constitutional issues] as the law of this circuit." Harris II, 216 F.3d at 985. In its analysis, the panel noted that "we express no view on whether section 1997e(e) would bar an action for nominal damages that are normally available for the violation of certain `absolute' constitutional rights, without any showing of actual injury.See Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 1054, 55 L.Ed.2d 252 (1978). Plaintiffs have not sought nominal damages in this case, and so we do not address the issue." Harris v. Garner, 190 F.3d 1279, 1287-1288 (11 Cir. 1999) (Harris I).
Thus, neither Harris I nor Harris II has foreclosed prisoner constitutional claims for nominal damages; the issue of whether the plaintiff is entitled to nominal damages with regard to the constitutional claims raised in this action remains one of first impression in this Circuit. Harris I, upon consideration of whether a prisoner may seek compensatory damages subsequent to release from custody, held that section 1997e(e) only precludes some actions for money damages, and does not materially thwart actions for declaratory and injunctive relief.Harris I, supra.
In Slicker v. Jackson, 215 F.3d 1225, 1231 (11 Cir. 2000), the Eleventh Circuit approved of a nominal damage award in an excessive force case.
Based on the Circuit's emphasis of limitation of recovery, not foreclosure of constitutional claims, and the Court's express distinction between types of remedies available in various cases, it appears that if squarely faced with the issue the Circuit would find that section § 1997e(e) does not foreclose a prisoner from pursuing judicial relief for a violation of his constitutional rights, despite the lack of physical injury.
Other circuits considering the issue have permitted prisoners to seek nominal damages for constitutional violations in and of themselves, adhering to the PLRA's mandate that the absence of a showing of physical injury bars compensatory relief for mental and emotional injuries. See Canell v. Lightner, 143 F.3d 1210, 1213 (9 Cir. 1998) ("The deprivation of First Amendment rights entitles a plaintiff to judicial relief wholly aside from any physical injury he can show, or any mental or emotional injury he may have incurred. Therefore, § 1997e(e) does not apply to First Amendment claims regardless of the form of relief sought."); Rowe v. Shake. 196 F.3d 778, 781-82 (7 Cir. 1999) (stating that because "[a] deprivation of First Amendment rights standing alone is a cognizable injury . . . [a] prisoner is entitled to judicial relief for a violation of his First Amendment rights aside from any physical, mental, or emotional injury he may have sustained.").
A prisoner may also seek punitive damages and equitable relief to remedy First Amendment violations. See Dawes v. Walker, 239 F.3d 489, 497 (2 Cir. 2001) (stating that "it is error for courts not to award nominal damages in § 1983 actions where a constitutional violation is established"); see also Robinson v. Cattaraugus County, 147 F.3d 153, 161 (2 Cir. 1998) (holding that "in § 1983 cases . . . punitive damages may be awarded even in the absence of a compensatory award."); Allah v. Al-Hafeez, 226 F.3d 247, 251-52 (3 Cir. 2000) (holding that "to the extent that [plaintiff's] punitive damages claims stem solely from the violation of his First Amendment rights, and not from any emotional or mental distress suffered therefrom, those claims are not claims brought `for mental or emotional injury suffered' and are not barred by § 1997e(e).").
In sum, it cannot be said that section 1997e(e) permits constitutional violations to go unremedied. It is thus recommended that the claim concerning the alleged violation of the plaintiff's right to free exercise of religion not be dismissed on the basis that it is barred by section 1997e(e)'s physical injury requirement insofar as a liberal construction of the complaint permits the Court to infer that the plaintiff seeks nominal and punitive damages, despite the fact that any prayer for compensatory damages should be denied because the plaintiff has not alleged that he suffered any physical injury.
III. Recommendation
For the reasons specified in the foregoing,It is recommended that the defendants' joint Motion to Dismiss [DE# 58] be denied.
Objections to this report may be tiled with the District Judge within ten days of receipt of a copy of the report.
It is so recommended.