Opinion
Case No. C-2-01-991
May 24, 2002
Report and Recommendation
Plaintiff Andre Player, formerly an inmate at the Nobel Correctional Institution, brings this 42 U.S.C. § 1983 action against defendants Ohio Department of Rehabilitation and Correction ("ODRC"), Nobel Correctional Institution ("NCI"), Warden Tom Haskins, and Corrections Officers Siddle and Joseph. The complaint alleges that on September 23, 1998 defendants Siddle and Joseph pushed Player into the west end of the A-1 dormitory — which was not Player's assigned dormitory — and locked the gate behind him. Defendants allegedly did this knowing that it forseeably exposed Player to physical and emotional abuse from the inmates in the west end of the A-1 dormitory. Player was assaulted by a group of inmates for approximately forty-five minutes. The complaint alleges that Siddle and Joseph refused to intervene to protect Player. On September 24, 1998, Player was transferred to the Southeastern Correctional Institution, where he remained incarcerated at the time he filed the current action.
The complaint asserts five claims for relief. Player asserts federal and state constitutional claims for cruel and unusual punishment. He further brings a breach of duty claim under Ohio law, as well as a failure to train/supervise claim under § 1983. Player also asserts a due process claim. The complaint alleges that defendants administered the grievance process in a way to delay, frustrate, and deny Player's valid claims.
This matter is before the Magistrate Judge for a Report and Recommendation on defendants' December 21, 2001 motion to dismiss (doc. 2). Defendants argue that Player failed to exhaust prison administrative remedies as required by 42 U.S.C. § 1997e(a). For the reasons set forth below, I recommend that defendants' motion be granted.
I. Procedural Background
Player originally filed suit in this Court on October 4, 1999. Player v. Ohio Dep't of Rehab. and Corrections, et al., Case No. C-2-99-1023. In that case, Player alleged the same set of facts and asserted the same claims as he does in the present suit. After an evidentiary hearing and post-hearing briefing, Magistrate Judge Kemp issued a March 28, 2001 Report and Recommendation that the case be dismissed under 42 U.S.C. § 1997e(a) for failure to exhaust prison administrative remedies. Specifically, the Magistrate Judge found that Player filed an initial grievance and subsequent appeal but failed to file an appeal to the Office of the Chief Inspector of the ODRC, as provided for under Ohio Administrative Code § 5120-9-31(H). The Court adopted the Report and Recommendation and dismissed the case. See Order, April 26, 2001.
As found by Magistrate Judge Kemp, Player first filed an informal complaint on November 29, 1998. Although Player filed his complaint beyond the time prescribed under O.A.C. § 5120-9-30(H) and ODRC Policy 203-01, the institutional inspector did not reject it as untimely. On December 16, 1998, the institutional inspector advised Player that the situation was still under investigation by the Ohio Highway Patrol and that the "appropriate disciplinary action would be taken against these staff members." March 28, 2001 Rep. Recomm., p. 8. The Magistrate Judge concluded that "the institutional inspector waived . . . the time limit which would ordinarily be imposed on Player in grieving this matter." Id.
Having heard nothing further about the matter, Player filed a formal complaint on June 23, 1999 and again on June 29, 1999. These grievances were rejected as untimely on July 2, 1999. The Magistrate Judge concluded that defendants could not argue the grievance was time-barred:
[I]t was reasonable for Player to conclude that the inspector was conducting an ongoing investigation, and that Player did not need to file a formal complaint until the investigation was completed. His formal complaint was filed within a reasonable period of time after the informal complaint. . . . Defendants are deemed to have waived any timeliness requirements.
Id., p. 9. The Magistrate Judge further found that Sixth Circuit case law regarding equitable tolling also applied. Id., pp. 9-10. Accordingly, the Magistrate Judge concluded that Player's initial informal grievance and his formal complaint were timely submitted. Id., p. 11.
However, the Magistrate Judge found that Player failed to exhaust the third step of the administrative process because he did not file an appeal to the Office of the Chief Inspector of the ODRC. Player had filled out an appeal form and dated it July 6, 1999. The purpose of the evidentiary hearing was to determine if Player in fact submitted the appeal to the Office of the Chief Inspector. Assistant Chief Inspector Linda Coval testified that she did not receive an appeal from Player and presented her office records in support of her testimony. Player did not appear at the hearing to refute Ms. Coval's testimony. The Magistrate Judge determined that Player had not submitted the appeal to the Office of the Chief Inspector and therefore recommended that the case be dismissed under 42 U.S.C. § 1997e(a) for failure to exhaust. Id., p. 11.
Following the April 26, 2001 entry of judgment against Player, Player's counsel attempted to obtain the necessary grievance forms from the Ohio Attorney General. The Ohio Attorney General responded on May 18, 2001, stating that only Player could request the forms and he had to direct his request to the institution from which he was released. Compl., Ex. B.
Player obtained the forms and prepared an appeal to the Chief Inspector. On August 9, 2001, Player's counsel sent the form to the Chief Inspector's office. Compl., Ex. C. Assistant Chief Inspector Gregory A. Bucholtz responded to Player's counsel on August 13, 2001. Mr. Bucholtz stated, "[T]he Office of the Chief Inspector will not entertain Mr. Player's attempt to appeal his grievance of June 29, 1999." Id., Ex. D. Two reasons were given. First, the appeal was not entertained because Player's counsel, and not Player himself, submitted the appeal. Second, the appeal was untimely because the it was filed over two years after the institutional inspector's July 2, 1999 disposition of his grievance. Mr. Bucholtz quoted ODRC Policy 203-01(D) — "Failure to move a grievance to the next step in a timely manner will constitute a withdrawal of the grievance." Id., Ex. D.
According to the complaint, the Chief Inspector's office has not acted on the August 9, 2001 appeal, other than to send the August 13, 2001 letter refusing to accept the appeal for review. Player argues that the Court should now deem Player's administrative remedies to be exhausted.
II. Motion to Dismiss
When considering a motion to dismiss pursuant to Fed.R.Civ.P. 12(b) (6), a court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded material allegations in the complaint as true. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 515 (1972); Roth Steel Prods. v. Sharon Steel Corp., 705 F.2d 134, 155 (6th dir. 1982); Smart v. Ellis Trucking Co., 580 F.2d 215, 218 n. 3 (6th Cir. 1978); Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976). Although the court must apply a liberal construction of the complaint in favor of the party opposing the motion to dismiss, see Kugler v. Helfant, 421 U.S. 117, 125-26 n. 5 (1975); Smart, 580 F.2d at 218 n. 3; Davis H. Elliot Co. v. Caribbean Utilities CO., 513 F.2d 1176, 1182 (6th Cir. 1975), a court will not accept conclusions of law or unwarranted inferences of fact cast in the form of factual allegations. See Blackburn v. Fisk Univ., 443 F.2d 121, 124 (6th Cir. 1971); Sexton v. Barry, 233 F.2d 220, 223 (6th Cir. 1956). In reading a complaint, however, a court will indulge all reasonable inferences that might be drawn from the pleading. See Fitzke v. Shappell, 468 F.2d 1072, 1076 n. 6 (6th Cir. 1972)
When determining the sufficiency of a complaint in the face of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), a court will apply the principle that "a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also McClain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232 (1980); Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir. 1983); Neil v. Bergland, 646 F.2d 1178, 1184 (6th Cir. 1981); Parker v. Turner, 626 F.2d 1, 7 (6th Cir. 1980). Because the motion under Fed.R.Civ.P. 12(b)(6) is directed solely to the complaint itself, see Roth Steel Prods., 705 F.2d at 155; Sims v. Mercy Hosp. of Monroe, 451 F.2d 171, 173 (6th Cir. 1983), the court must focus on whether the claimant is entitled to offer evidence to support the claims, rather than whether the plaintiff will ultimately prevail. See Scheuer, 416 U.S. at 236; McDaniel v. Rhodes, 512 F. Supp. 117, 120 (S.D. Ohio 1981). A federal court cannot consider extrinsic evidence in determining whether a complaint states a claim upon which relief can be granted. See Roth Steel Prods., 705 F.2d at 155; Sims, 451 F.2d at 173.
A complaint need not set down in detail all the particularities of a plaintiff's claim against a defendant. See United States v. School Dist. of Ferndale, 577 F.2d 1339, 1345 (6th Cir. 1978); Westlake v. Lucas, 537 F.2d at 858; Dunn v. Tennessee, 697 F.2d 121, 125 (6th Cir. 1983). Fed.R.Civ.P. 8(a)(2) simply requires a "short and plain statement of the claim showing that the pleader is entitled to relief." The function of the complaint is to afford the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. See Dunn, 697 F.2d at 125; Westlake, 537 F.2d at 858.
The court will grant a defendant's motion for dismissal under Fed.R.Civ.P. 12(b)(6) if the complaint is without any merit because of an absence of law to support a claim of the type made, or of facts sufficient to make a valid claim, or if on the face of the complaint there is an insurmountable bar to relief indicating that the plaintiff does not have a claim. See generally Rauch v. Day Night Mfg. Corp., 576 F.2d 697 (6th Cir. 1978); ott v. Midland-Ross Corp., 523 F.2d 1367; Brennan v. Rhodes, 423 F.2d 706 (6th Cir. 1970). It is not necessary that a plaintiff set forth in a complaint the legal theory on which plaintiff relies if the complaint sets forth sufficient factual allegations to state a claim showing that plaintiff is entitled to any relief which can be granted. See Rohler v. TRW, Inc., 576 F.2d 1260, 1264 (7th Cir. 1978); Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir. 1974); New Amsterdam Casualty Co. v. Waller, 323 F.2d 20, 24-25 (4th Cir. 1963)
III. Discussion
A. Defendants' Arguments
Defendants argue that the Ohio Department of Rehabilitation and Correction and the Nobel Correctional Institution must be dismissed because they are immune from suit under the Eleventh Amendment. Pennhurst State School Hospital v. Halderman, 465 U.S. 89, 100 (1984)
Defendants further argue that the complaint must be dismissed because Player failed to timely exhaust his administrative remedies. Player's appeal to the Chief Inspector was submitted more than two years after the disposition of his grievance. Defendants cite to O.A.C. § 5120-9-31 (H)(8), which allows an inmate five days to appeal the disposition of a grievance to the Chief Inspector. According to defendants, Player's failure to appeal within the prescribed time frame constitutes a withdrawal of his grievance. Thus, the complaint should be dismissed under 42 U.S.C. § 1997e(a)
Defendants also contend that Warden Tom Haskins must be dismissed because he did not directly participate in the alleged actionable conduct. Haskins did not order Siddle and Joseph to push Player into the dormitory or to refrain from protecting Player against the assault. Haskins's supervisory capacity alone does not make him liable, defendants argue. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)
B. Plaintiff's Arguments
In response to defendants' sovereign immunity argument, plaintiff maintains that he is seeking only injunctive relief, not monetary relief, against ODRC and NCI.
With respect to exhaustion, plaintiff argues that he should be deemed to have exhausted his administrative remedies. Plaintiff waited until August 9, 2001 to appeal to the Chief Inspector because of the pending litigation in this Court. According to plaintiff, once the Court determined Player had not exhausted his administrative remedies and returned the case to the administrative process, Player diligently attempted to exhaust his remedies.
As for Warden Haskins, plaintiff claims he "acquiesced and ratified" the conduct of Siddle and Joseph. Haskins allowed similar conduct to occur in the past and failed to discipline Siddle and Joseph for their conduct on September 23, 1998. According to plaintiff, this is sufficient to impose § 1983 liability on Haskins. Alioto v. City of Shively, 835 F.2d 1173, 1175 (6th Cir. 1987)
C. Discussion
The Eleventh Amendment clearly bars Player' s suit against ODRC and NCI. See Papasan v. Allain, 478 U.S. 265, 276 (1986); Florida Dep't. of State v. Treasure Salvors, Inc., 458 U.S. 670 (1982); Estate of Ritter v. Univ. of Michigan, 851 F.2d 846, 848 (6th Cir. 1988). While the Eleventh Amendment does not bar an action for injunctive relief against a state officer for violations of the United States Constitution, Ex parte Young, 209 U.S. 123 (1908); Cory v. White, 457 U.S. 85 (1982), an action for injunctive relief against the State or its agencies cannot be brought. Pennhurst State School Hospital v. Halderman, 465 U.S. 89, 101-02 (1984) (holding that "a suit against a State is barred regardless of whether it seeks damages or injunctive relief")
Turning to the timeliness of Player's appeal to the Chief Inspector, a prisoner challenging "prison conditions" under § 1983 must exhaust his administrative remedies. 42 U.S.C. § 1997e(a). The exhaustion requirement is mandatory and must be addressed by the district court in the first instance. Curry v. Scott, 249 F.3d 493, 501 (6th Cir. 2001); Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998). Prisoners filing suit pursuant to § 1983 "must allege and show that they exhausted all available state administrative remedies." Toombs, 139 F.3d at 1104. Ideally, a prisoner should attach to his § 1983 complaint the administrative decision showing the disposition of his complaint. Id.
Ohio law provides for a three-step inmate grievance procedure by which inmate grievances are investigated. First, an inmate must contact an "appropriate institutional department or staff member" to resolve the dispute informally. O.A.C. § 5120-9-31(F). The inmate may then file a formal complaint with the inspector of institutional services. O.A.C. § 5120-9-31(H)(1). An inmate may appeal the resolution of his grievance to the Chief Inspector, who must decide the appeal within twenty working days. Id. at (H)(8).
O.A.C. § 5120-9-31 was amended effective January 1, 2002. The three-step process is still in place, but the timing of the process has been modified. A.O.C. § 5120-9-31(J).
Prisoners must do more than file an initial grievance to exhaust remedies under § 1997e(a). The exhaustion requirement means that all administrative remedies must be exhausted. Booth v. Churner, 532 U.S. 731, 740-41 (2001). If the grievance is denied initially, the prisoner must, within the time frame required by the administrative regulations, proceed on to the next step of the prison grievance procedure. Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999). An Ohio prisoner using the grievance remedies available under O.A.C. § 5120-9-31 must, within five working days of the disposition of his grievance, appeal to the Chief Inspector. O.A.C. § 5120-9-31(H)(8); Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999). If he fails to do so, the prisoner has not exhausted his prison administrative remedies as required by § 1997e(a). Freeman, 196 F.3d at 645.
Player's August 9, 2001 appeal to the Chief Inspector must be rejected as untimely. Magistrate Judge Kemp determined that Player did timely complete the first two steps of the grievance process-Player reasonably relied on the institutional inspector's representation that an investigation was pending and thus defendants waived any timeliness objection. However, the Magistrate Judge made no determination that defendants waived a timeliness objection as to third step of the grievance process. The Magistrate Judge did not relieve Player of his obligation to appeal to the Chief Inspector within five working days of the disposition of his grievance. The Magistrate Judge found that Player's purported July 6, 1999 appeal of the July 2, 1999 disposition of his grievance was never filed. Player's appeal came over two years after the disposition of his grievance.
Player argues that the grievance process was tolled while his first lawsuit was pending. According to Player, the Magistrate Judge in effect "returned" the case to the ODRC for Player to file his appeal to the Chief Inspector. I find this argument untenable in the circumstances of this case. Nothing in the language of the March 28, 2001 Report and Recommendation supports Player's position, and he has cited no case law supporting his assertion. It is true that the exhaustion requirement of § 1997e is not jurisdictional and may be subject to certain defenses such as waiver, estoppel or equitable tolling. Wright v. Morris, 111 F.3d 414, 420-21 (6th Cir. 1997); Underwood v. Wilson, 151 F.3d 292, 294-95 (5th Cir. 1998). Such defenses are particularly applicable when an inmate is precluded from exhausting his remedies due to circumstances beyond his control. See, e.g, White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997). For example, Player was unable to complete the first two steps of the grievance process because of a pending Ohio Highway Patrol investigation. However, once Player was able to complete the second step of the process on June 29, 1999, there were no circumstances beyond his control precluding him from completing the third step. See Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999) (a prisoner "cannot simply fail to file a grievance or abandon the process before completion and claim that he has exhausted his remedies . . .")
Plaintiff perhaps has confused this situation with tolling the applicable statute of limitations while a prisoner exhausts his administrative remedies. See Brown v. Morgan, 209 F.3d 595 (6th Cir. 2000).
Tolling may be appropriate where a prisoner brings a § 1983 action believing in good faith that he exhausted his administrative remedies. That is not the case here, Magistrate Judge Kemp determined after an evidentiary hearing that "Player never filed an appeal of the disposition of his formal grievance with the Office of Chief Inspector." March 28, 2001 Rep. Recomm. This is not a situation where Player innocently misfiled his appeal or missed the deadline by a few days; he altogether failed to file an appeal before bringing the October 4, 1999 action.
Player's tolling argument may find some support in the practice of courts to dismiss unexhausted claims without prejudice. Courts should typically dismiss an action without prejudice where a prisoner has failed to satisfy § 1997e(a) prior to bringing suit. See Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir. 1999); Brown, 139 F.3d at 1104. Prisoners may re-file when they are prepared to prove they have exhausted the administrative remedies available to them. Yet dismissal without prejudice is not an invitation for abuse — a prisoner cannot wait an unreasonably long time after dismissal to exhaust and then expect to be able to bring suit again.
The Court's April 26, 2001 Order and the Magistrate Judge's March 28, 2001 Report and Recommendation did not expressly state whether the dismissal was with or without prejudice. An involuntary dismissal upon nonjurisdictional grounds "operates as an adjudication upon the merits" unless otherwise specified. Fed.R.Civ.P. 41(b). In the habeas corpus context, dismissal with prejudice is inappropriate if the ground for dismissal is failure to exhaust administrative remedies. See Greene v. Meese, 875 F.2d 639, 643 (7th Cir. 1989); Wilson v. Allsbrook, No. 91-6693, 1992 WL 24231 (6th Cir. Feb. 13, 1992) (per curiam). "[T]he norm regarding the character of dismissals for failure to exhaust administrative remedies may be sufficiently well established to override the implication from Rule 41(b) of the judge's failure to specify that he was dismissing [the] case without prejudice." Greene, 875 F.2d at 643. The Sixth Circuit has held that prisoner § 1983 actions which contain unexhausted claims "should be dismissed without prejudice." Wyatt, 193 F.3d at 879; Brown, 139 F.3d at 1104. This suggests that the norm regarding dismissals in habeas actions holds true in the § 1983 context as well.
Thus, I will assume that dismissal of the October 4, 1999 action was without prejudice. And I will assume for the sake of argument that the time for Player to appeal to the Chief Inspector was tolled while the first action was pending. I nonetheless find that Player failed to timely exhaust his administrative remedies after this Court entered final judgment on April 26, 2001. He did not appeal to the Chief Inspector within five working days of receipt of the final judgment. Even if the five day time limit is replaced in favor of a "reasonable time" requirement, Player did not appeal within a reasonable time. He waited approximately three and a half months after the entry of judgment to file his appeal on August 9, 2001. He waited approximately two and a half months after receiving the Ohio Attorney General's May 18, 2001 letter — stating that Player had to obtain the grievance forms from the institution from which he was released — to file his appeal.
Accordingly, I find that Player failed to timely exhaust his administrative remedies, as required by 42 U.S.C. § 1997e(a).
IV. Conclusion
For the reasons set forth above, it is RECOMMENDED that defendants' December 21, 2001 motion to dismiss (doc. 2) be GRANTED.
If any party objects to this Report and Recommendation, that party may, within ten (10) days, file and serve on all parties a motion for reconsideration by the Court, specifically designating this Report and Recommendation, and the part thereof in question, as well as the basis for objection thereto. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b)
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to de novo review by the District Judge and waiver of the right to appeal the judgment of the District Court. See Thomas v. Am, 474 U.S. 140, 150-152 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See also Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989)