Opinion
Case No. 00-CV-10260-BC
February 22, 2002
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING PLAINTIFF'S COMPLAINT WITHOUT PREJUDICE
This case had been referred to Magistrate Judge Charles B. Binder for general case management. The matter is now before the Court on the Report and Recommendation of the Magistrate Judge that the plaintiff's complaint be dismissed sua sponte without prejudice for failure to exhaust administrative remedies. The plaintiff has filed objections to the Report and Recommendation. After reviewing the Report and Recommendation de novo and the plaintiff's objections thereto, the Court agrees with the finding of the Magistrate Judge that the plaintiff has failed to exhaust his administrative remedies, and that this case must be dismissed sua sponte without prejudice.
I.
The plaintiff, Mark Earl White, is currently incarcerated at Camp Lehman Correctional Facility, which is operated by the Michigan Department of Corrections ("MDOC") in Grayling, Michigan. The plaintiff filed this pro se prisoner civil rights complaint on July 27, 2000. The complaint originally alleged two claims: unlawful retaliation by defendants Birkett and Craigie, and improper calculation and enforcement of the plaintiff's sentence by MDOC employee Marjorie Van Ochten and an "unknown records officer." This Court subsequently dismissed the improper calculation of sentence claim and the latter two individuals from the case, finding the claim to be barred by the Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477 (1994). The plaintiff's retaliation claims against Birkett and Craigie remained.
II.
Current federal law states that before any prisoner may file a civil rights suit challenging prison conditions, he must exhaust all internal administrative remedies. See 42 U.S.C. § 1997e(a). A prisoner's failure to demonstrate exhaustion of internal remedies is grounds for automatic dismissal. See Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998). The internal administrative procedures must be followed even if they do not offer the precise relief that the prisoner seeks. See Booth v. Churner, ___ U.S. ___, 121 S.Ct. 1819, 1825 (2001). Dismissal without prejudice is required even if the time for filing the required grievance has expired. See Wright v. Morris, 111 F.3d 414, 417 n. 3 (6th Cir. 1997). A prisoner cannot abandon the grievance process before completion and then claim to have exhausted administrative remedies. Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999).
To demonstrate exhaustion of his administrative remedies, the Sixth Circuit requires that an inmate attach to his complaint copies of his filed grievances as proof of exhaustion. Brown, 139 F.3d at 1104. Failure to provide this affirmative showing of exhaustion justifies dismissal of the plaintiff's complaint. See Curry v. Scott, 249 F.3d 493 (6th Cir. 2001) (affirming dismissal of prisoner-plaintiff's claims for failure to attach proof of exhaustion to his complaint, even though it appeared that the prisoner had in fact exhausted his administrative remedies). Where the prisoner has failed to attach the proper grievance forms to his complaint, this Circuit requires the Court to dismiss the prisoner's complaint on its own initiative. Brown, 139 F.3d at 1104.
The Magistrate Judge correctly explained that the MDOC has a multi-step grievance process in place. Each step has a time limit that can be waived with good cause. First, within two business days. the prisoner must attempt verbally to resolve the dispute with those involved. If that fails, the inmate then must submit a Step I grievance within five days. The prison staff is required to respond within fifteen days. If the inmate is dissatisfied with the response, he may request a Step II appeal form within five days, and then has five additional days to submit it. If an inmate is dissatisfied with the result at Step II, he has ten business days to appeal to Step III, which concludes the grievance process. Where the prisoner seeks to grieve extraordinary misconduct such as corruption or staff brutality, however, the prisoner can directly file a Step III grievance. If the stated allegations fail to meet these criteria, the Step III grievance is returned to the prisoner for filing at Step I. See generally MDOC Policy Directive 03.02.130.
In this case, the plaintiff skipped directly to Step III and filed a grievance on March 20, 2000 claiming that defendants Birkett and Craigie had transferred him to the Kinross Correctional Facility in retaliation for the plaintiff's suit against a state court judge. Laura Dotson, the manager of Prisoner Affairs in Lansing, Michigan, returned the grievance to the plaintiff on March 30, 2000, explaining that the allegations did not justify a direct Step III filing. Dotson told the plaintiff that he would have to refile his grievance at Step 1.
The plaintiff admits that he never refiled his grievance, claiming only that he had been unable to resolve the matter in person and that the MDOC's grievance procedures were not approved by the United States Attorney General anyway. Pl.'s Compl. ¶ 29.
The Magistrate Judge correctly found that the plaintiff's motivations for not following the grievance procedures are irrelevant. The PLRA expressly removed language previously found in 42 U.S.C. § 1997e that required prison grievance procedures to be certified, and which only required a good faith effort by the prisoner to exhaust his internal remedies. See Alexander v. Hawk, 159 F.3d 1321, 1326 (11th Cir. 1998). The plaintiff's speculation that his grievance may have been denied anyway is similarly irrelevant. Either the prisoner has exhausted his administrative remedies or he has not, and this plaintiff has not.
In his voluminous objections, the plaintiff raises several challenges. First, the plaintiff complains that the Magistrate Judge raised exhaustion on his own motion, claiming that exhaustion is not jurisdictional requirement and in fact is an affirmative defense that pursuant to the Federal Rules of Civil Procedure is deemed raised if not waived. The plaintiff's statement of the law is correct as far as it goes, but he neglects to recognize binding Sixth Circuit precedent which requires this Court to raise the issue of exhaustion if the defendants have not. See Brown, 139 F.3d at 1104. Second, the plaintiff takes issue with Ms. Dotson's refusal to accept his grievance at Step III, arguing that the "plain meaning" of "staff corruption" supports the filing of his claim at Step III. This Court, however, has no authority to direct the MDOC in the operation of its grievance process. Ms. Dotson determined that retaliatory transfer did not constitute "staff corruption," as is within the scope of her authority. She did not deny the plaintiff's grievance on the merits, but instead returned the plaintiff's grievance to him and encouraged him to follow the normal channels. It was the plaintiff who did not pursue the matter further. Finally, the plaintiff reiterates his numerous claims, and argues that this Court's failure to address his claims will embolden the defendants to continue their pattern of retaliation against him. Even if these speculations were correct, the plaintiff provides this Court with no authority that trumps the statutory command of Congress: "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." 42 U.S.C. § 1997e(a).
III.
The plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act. The Magistrate Judge correctly and properly determined this to be the case and recommended that the plaintiff's complaint be dismissed sua sponte for failure to comply with the PLRA.
Accordingly, it is ORDERED that the Magistrate Judge's Report and Recommendation is ADOPTED.
It is further ORDERED that the plaintiff's complaint is DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies.
It is further ORDERED that the remaining motions in this case, including the plaintiff's Motions for Preliminary Injunction [dkt #s 6 and 13], Motion for Judgment on the Pleadings [dkt #50], and Motion to Dismiss Under Duress [dkt #53], and the defendants' Motion for Summary Judgment [dkt #37], Motion for Leave to Take Plaintiff's Deposition [dkt #43], Motion to Strike Plaintiff's Response to Defendants' Motion for Summary Judgment [dkt #44], Motion to Enlarge Response Time [dkt #46], Motion to Strike Plaintiff's Motion for Judgment on the Pleadings [dkt #51], and Motion to Strike Plaintiff's Motion to Dismiss Under Duress and to Require Plaintiff to Serve Defense Counsel [dkt #54], are all DENIED AS MOOT.