Opinion
Case No. 00-CV-10501-BC
March 18, 2002
The matter was referred to Magistrate Judge Charles E. Binder for full case management, and is now before the Court on the sua sponte report and recommendation of the Magistrate Judge that this case be dismissed due to the plaintiff's failure to demonstrate exhaustion of administrative remedies. Because the Magistrate Judge correctly determined the applicable law and correctly applied it to the allegations of the plaintiff's complaint, the report and recommendation will be adopted, and the plaintiff's complaint will be dismissed.
I.
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, 121 S.Ct. 1819, 1825 (2001); see also Porter v. Nussle, No. 00-853, 2002 WL 261683 (U.S. Feb. 26, 2002). 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 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).
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. See generally MDOC Policy Directive 03.02.130.
The Magistrate Judge correctly concluded that the plaintiff failed to exhaust his administrative remedies with respect to all the claims raised in his complaint. Contrary to Sixth Circuit precedent, the prisoner did not attach copies of rejected Step III grievance forms to his complaint. Upon the request of the Magistrate Judge for proof of exhaustion, the plaintiff tendered only three grievances that reached Step I, and some of those do not appear to have been pursued until after the complaint in this case was filed. The PLRA does not permit the prisoner plaintiff to file first and exhaust remedies later. See Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999). Because the claims in the plaintiff's complaint were never properly presented to the MDOC for internal review, they are not properly before the Court either. See 42 U.S.C. § 1997e(a).
The plaintiff filed timely objections. First, the plaintiff complains that the Magistrate Judge's screening of his complaint was improper because Magistrate Judge Paul Komives had already screened it and approved the complaint. Magistrate Judge Komives, however, only examines the complaint to determine whether a prisoner plaintiff is barred from seeking in forma pauperis status. The plaintiff in this case paid the filing fee, and, in any event, the plaintiff does not demonstrate that Magistrate Judge Komives ever conducted an inquiry into the plaintiff's exhaustion of internal remedies. Second, the plaintiff alleges that the reason he cannot submit more grievance forms is because prison officials frequently refuse to permit him to file grievances, and that when they do, they do not return the dispositions to him for his records. The plaintiff complains that his verified complaint makes these allegations, and that the Court's failure to take this allegation as true violates the standards governing a motion to dismiss. The plaintiff's analysis of the law is correct, as far as it goes. The Sixth Circuit has recognized, however, that the plaintiff cannot simply assert that he is not receiving grievance forms: if he could do so, every prisoner could waive his way into federal court by asserting such. See Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir. 2000). Even if the Court were to excuse the requirement of written documentation, the plaintiff has not pleaded with specificity the dates that he requested the grievances, the individual events he attempted to grieve, or any other information reflecting a good-faith by the plaintiff to exhaust his claims. See id. Furthermore, the documents submitted by the plaintiff indicate that the plaintiff has been placed on Modified Grievance Access due to repeated false filings alleging misconduct by prison staff. Therefore, to the extent that plaintiff's access to the grievance process has been hindered, it is of his own doing. See also Kennedy v. Talio, 20 Fed. Appx. 469, 470 (6th Cir. 2001) (modified grievance access does not violate inmates' right of access to the courts). Third, the plaintiff complains that the grievance process is futile because it cannot provide him with the relief he seeks, such as punitive damages. The Supreme Court, however, has explicitly rejected the notion that a prisoner can avoid grieving his complaints merely by requesting relief that the prison grievance process cannot provide. See Booth v, 121 S.Ct. at 1825.
Thus, the plaintiff's objections are unavailing.
II.
The plaintiff's claims do not appear to have been exhausted through the MDOC grievance process, contrary to 42 U.S.C. § 1997e(a). Because no claims remain upon which relief can be granted, the Court will dismiss the complaint.
Accordingly, it is ORDERED that the Magistrate Judge's Report and Recommendation is ADOPTED.
It is further ORDERED that the plaintiff's complaint will be DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies.
It is further ORDERED that the plaintiff's remaining motions, including, but not limited to his Motion for Temporary Restraining Order or Preliminary Injunction [dkt #6], Motion to Extend Time [dkt #12] Motion for Leave to Have the Court Serve the Defendants [dkt #17], Motion to Extend Time to File an Objection [dkt #21], and Motion for Access to the Court [dkt #22] are DENIED AS MOOT.
It is further ORDERED that because the time for the plaintiff to grieve his unexhausted claims with the MDOC has expired, the clerk shall close this case.