Opinion
Civil Action No. 3:04-CV-0694-K.
March 23, 2005
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's Order, filed January 24, 2005, David Carfrey's Defendant's Motion to Dismiss or, Alternatively, Motion for Summary Judgment with Supporting Brief, filed November 26, 2004, and Defendant Georgia Carfrey's Motion to Dismiss or, Alternatively, Motion for Summary Judgment with Supporting Brief, filed January 7, 2005, have been referred to this Court for report and recommendation. Also before the Court are Plaintiffs Counterclaim to Defendants Motion to Dismiss and Summary Judgement [sic], filed December 6, 2004, and Plaintiffs Counterclaim to Defendants Motion to Dismiss or Alternately, Motion for Summary Judgement [sic], filed February 1, 2005. Defendants did not file replies. Based on the filings and the applicable law, the Court is of the opinion that the motions to dismiss should be GRANTED.
I. BACKGROUND
Plaintiff John Bernard Williams, III ("Plaintiff") filed this pro se civil rights suit in state court on March 4, 2004; at that time, he was incarcerated in the Estes Unit of the Texas Department of Criminal Justice (TDCJ). According to Plaintiff's Petition to Commence Suit, Defendants served as either volunteers or employees in the Chaplaincy Program or Programs Department of the Estes Unit of TDCJ. (Pet. at 2.) Plaintiff alleges that Defendants established unprofessional relationships with inmates by delivering packages to inmates' families willing to meet the Defendants at their church, and by copying personal and legal materials for inmates. Id.On February 13, 2004, Plaintiff states that he was being transferred to the Walls Unit when Defendant Georgia Carfrey ("Mrs. Carfrey") gave him her home address. Id. According to Plaintiff, he subsequently wrote the Defendants a thank you letter for their assistance, and mailed that letter to them along with legal documents for delivery to another inmate in the Estes Unit. Id. On February 24, 2004, a day after Plaintiff returned to the Estes Unit, he states that he was accused of establishing a relationship with an employee in an effort to circumvent inmate mail correspondence rules. Id. Plaintiff admits that he had sent correspondence to Defendants, but complains that Defendants failed to acknowledge that they had provided him with their address. Id. Plaintiff states that he was placed in prehearing detention pending an investigation of the alleged misconduct. Id.
Plaintiff's petition lists his causes of action as "(1) unprofessional conduct, (2) deliberate negligence-wanton negligence, (3) libel/slander, (4) Violations of Civil Rights of a Person in Custody guaranteed by the 1st, 5th, 8th, and 14th U.S.C.A., in conjunction with Texas. art. I § 13, and § 19, of the Texas Constitution." Id. at 2. Plaintiff argues that he had a right to write to others about actual or potential legal action, and that by reporting the correspondence he sent Defendants for delivery to another inmate, they engaged in conduct that violated his civil rights. Id. at 4. He appears to hold Defendants responsible for what he alleges was an unconstitutional investigation and for false imprisonment pending that investigation. Id. Plaintiff alleges that Defendants committed libel and slander by failing to acknowledge that they provided their addresses to him, causing him irreparable injury and harm of a physical, mental, and spiritual nature. Id. Plaintiff further alleges that by providing their address, they acted with "wanton negligence" and committed acts of "[d]eliberate neglect" by not admitting that they had done so. Id. at 3.
Defendant David Carfrey ("Mr. Carfrey") removed the matter to federal district court on April 2, 2004. On September 1, 2004, Plaintiff filed a motion to compel service of Mrs. Carfrey. He filed a motion for subpoena of evidence for discovery on October 25, 2004. In an Order issued on November 22, 2004, this Court denied Plaintiff's motion to compel service, but extended the deadline for service to February 17, 2005.
At the time Mr. Carfrey removed the action to federal district court, his co-defendant had not been properly served.
Mr. Carfrey filed his motion to dismiss or, alternatively, motion for summary judgment, on November 26, 2004. Among other arguments, he asserts that Plaintiff's suit should be dismissed because he failed to exhaust administrative remedies prior to filing suit as required by the Prison Litigation Reform Act. (Mot. at 7.) Mr. Carfrey also argues that Plaintiff's state law claims fail by virtue of Plaintiff's deemed admissions. Id. at 10. Plaintiff filed a response on December 6, 2004, in which he appears to request that the Court delay a ruling on Mr. Carfrey's motion until proper service on Mrs. Carfrey could be effected.
On December 23, 2004, the Court denied Plaintiff's motion for subpoena of evidence for discovery. Mrs. Carfrey executed a waiver of service filed December 20, 2004, and filed her motion to dismiss or, alternatively, motion for summary judgment on January 7, 2005, raising assertions identical to those in Mr. Carfrey's motion. Plaintiff responded on February 1, 2005, asserting that a statement by Defendants deprived him of a parole hearing and due process. He did not provide details regarding the substance of the statement to which he referred, nor did he address Mr. Carfrey's assertions regarding exhaustion of administrative remedies.
Because the motions are nearly identical, the Court refers only to Mr. Carfrey's in discussing Defend ants' arguments.
II. ANALYSIS
A. Plaintiff's Federal Claims
1. Exhaustion of Administrative Remedies Under the Prison Litigation Reform Act
Defendants move to dismiss Plaintiff's First, Fifth, Eighth, and Fourteenth Amendment claims for failure to exhaust administrative remedies as mandated by § 1997e(a) of Title 42 of the United States Code. (Mot. at 7.) Section 1997e, as amended by the Prison Litigation Reform Act of 1996 (PLRA), provides that "[n]o action shall be brought with respect to prison conditions under § 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." Section 1997e "plainly requires that administrative remedies be exhausted before the filing of a § 1983 suit, rather than while the action is pending." Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998) (emphasis in original). When a prisoner does not exhaust administrative remedies until after he files suit, dismissal is required. Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir. 1998). In such instances, dismissal "may serve as an appropriate deterrant to premature filing," thus furthering the Congressional purpose in passing the PLRA, even if dismissal may be inefficient. Id.; see also Johnson v. Jones, 340 F.3d 624, 627-628 (8th Cir. 2003) (collecting cases from First, Second, Sixth, Seventh, Ninth, and D.C. circuits holding that "exhaustion pendente lite undermines the objectives of section 1997e(a) . . . the language of section 1997e(a) clearly contemplates exhaustion prior to the commencement of the action as an indispensable requirement, thus requiring an outright dismissal of such actions rather than issuing continuances so that exhaustion may occur.").
The exhaustion requirement of § 1997e "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is a prerequisite to suit even when the prisoner seeks relief not available in grievance proceedings such as money damages. See Booth v. Churner, 532 U.S. 731, 740-41 (2001).
Exhaustion under the PLRA is mandatory, and the requirement is strictly construed. See Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003). The Court does not "inquire whether administrative procedures satisfy minimum acceptable standards of fairness and effectiveness"; prisoners simply "must exhaust such administrative remedies as are available, whatever they may be." Alexander v. Tippah County, 351 F.3d 626, 630 (5th Cir. 2003) (citations and internal quotation marks omitted), cert. denied, ___ U.S. ___, 124 S. Ct. 2071 (2004). In addition, the courts need not "determine whether a prisoner . . . has reasonably and in good-faith pursued his administrative remedies." Underwood v. Wilson, 151 F.3d 292, 294 (5th Cir. 1998).
2. Mechanism for Filing a Motion to Dismiss for Failure to Exhaust
Defendants have moved to dismiss Plaintiff's federal claims for failure to exhaust pursuant to 12(b)(6) or, to the extent that the Court relies on evidence attached to the motion, for summary judgment. (Mot. at 3-5.) "If failure to exhaust administrative remedies is apparent from the face of the complaint . . . a Rule 12(b)(6) motion is the proper vehicle." McCoy v. Goord, 255 F. Supp. 2d. 233, 249 (S.D.N.Y. 2003). In the instant suit, as will be discussed in greater detail below, Plaintiff's failure to exhaust is evident from the face of his complaint. Accordingly, Defendants' motion will be analyzed as a motion to dismiss under Rule 12(b)(6).
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure challenges a complaint on the basis that it fails to state a claim upon which relief can be granted. See FED. R. CIV. P. 12(b)(6). Rule 12(b)(6) motions to dismiss are disfavored and rarely granted. Sosa v. Coleman, 646 F.2d 991, 993 (5th Cir. 1981). To avoid dismissal, the plaintiff's pleadings must show specific, well-pleaded facts, not mere conclusory allegations. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992). The court must accept those well-pleaded facts as true and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). A court cannot dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). The court focuses on whether the plaintiff has a right to offer evidence to support his claims, rather than on whether he will succeed on those claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
3. Texas' Two-step Grievance Procedure
To exhaust in accordance with § 1997e(a), a prisoner in a facility of the Texas Department of Criminal Justice ("TDCJ") must pursue his administrative remedies under the two-step grievance procedure applicable in the Texas prison system. See Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998). The Fifth Circuit has described the two-step procedure as follows:
As part of TDCJ, the Estes Unit follows the same two-step procedure.
Step 1 requires the prisoner to submit an administrative grievance at the institutional level. After an investigation, the unit grievance investigator prepares a report and makes a recommendation to the final decision maker for step 1 of the process, which may be the warden, assistant warden, facility administrator, assistant facility administrator, or health administrator. Step 2 permits the prisoner to submit an appeal to the division grievance investigation with the Institutional Division of the Texas Department of Criminal Justice. After an investigation, the departmental grievance investigator prepares a report and makes a recommendation to the final decision maker for step 2 of the process, which is the director, deputy director, regional director or assistant director.
The grievance procedure takes approximately 90 days to exhaust. Prisoners are allowed 15 calendar days to file a step 1 grievance. The response to the step 1 grievance is due within forty days after receipt of the grievance. The prisoner then has 10 days to submit an appeal. The response to the step 2 grievance is due within forty days after receipt of the prisoner's appeal.Id. at 891 (citations omitted).
From the face of Plaintiff's petition, it is clear that at the time he filed suit, he had not yet initiated, much less exhausted the grievance procedure. In a section of his petition titled "Exhaustion of Remedies," Plaintiff states:
In accordance with Inmate Litigation and USSC Booth v. Churner, 121 S.Ct. 1819, remedies are being sought by Office Investigator General stationed on the Estes, and the filing of a grievance would not be part of the investigation when statements are to be compiled ONLY; and then, and only then if additional time is applied to the investigation will the plaintiff contest the prehearing detainment being CONTRARY TO TDCJ-ID RULES AND PROCEDURES.
(Pet. at 3.) (underlining and capitalization in original). Although Plaintiff's statement is somewhat confusing, it indicates that Plaintiff had not yet filed a grievance at the time he filed his petition. In addition, Plaintiff's petition states that he was accused of misconduct on February 24, 2004 and placed in pre-hearing detention pending an investigation of that conduct on February 27, 2004. He filed suit on March 4, 2004, within days of these events. Because the grievance procedure generally takes approximately 90 days to exhaust, as noted above, such a short time span between the action Plaintiff complains of and the filing of his suit plainly indicates that Plaintiff had not exhausted his administrative remedies at the time he filed suit. Because Plaintiff had not yet exhausted his administrative remedies prior to filing suit, dismissal is mandatory even if he exhausted his administrative remedies while his suit was pending. See Underwood, 151 F.3d at 296.
In recommending dismissal of Plaintiff's federal claims, the Court has not considered any of the evidence Defendants submitted with their motion. Any evidence bearing on whether Plaintiff exhausted his administrative remedies pendente lite has no bearing on the Court's recommendation, as prisoners must exhaust remedies prior to filing suit, and from the face of Plaintiff's petition it is clear that he had not done so.
4. Defenses for Failure to Exhaust
Exhaustion of administrative remedies pursuant to § 1997e is not a jurisdictional requirement. See Underwood, 151 F.3d at 294-295. Because the PLRA's exhaustion requirement is not jurisdictional, the Fifth Circuit has held that it "may be subject to certain defenses such as waiver, estoppel, or equitable tolling." Wendell v. Asher, 162 F.3d at 890 (citations omitted). Here, Defendant has presented no defense for his failure to exhaust administrative remedies.
When a prisoner fails to exhaust his administrative remedies prior to filing suit, without a valid excuse, the Court properly dismisses the action without prejudice to its refiling after the prisoner exhausts his administrative remedies. Id at 890-91. Accordingly, because Plaintiff failed to exhaust his administrative remedies prior to filing suit and has provided no valid defense for such failure, his First, Fifth, Eighth, and Fourteenth Amendment claims should be dismissed without prejudice. See id. (dismissing prisoner's § 1983 claims for failure to exhaust administrative remedies prior to filing suit, where prisoner had raised no valid excuse for failure to exhaust); Burnett v. Robinson, 2001 WL 1577495, at *2 (N.D. Tex. Dec. 7, 2001) (same); West v. Baker, 2001 WL 14080386, at *2 (N.D. Tex. Nov. 1, 2003) (same).
Assuming, arguendo, that Plaintiff had exhausted administrative remedies prior to filing suit, his claims should be dismissed with prejudice as frivolous. See West v. Baker, 2001 WL 14080386, at *2 (N.D. Tex. Nov. 1, 2003) (citing 28 U.S.C. § 1915A and § 1915(e)(2)(B), noting that they impose a screening responsibility on the district court). A plaintiff seeking relief under 42 U.S.C. § 1983 must allege two elements: (1) a deprivation of a right secured by the Constitution and laws of the United States, and (2) a deprivation of that right by the defendant acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Plaintiff's claims relate to his allegation that Defendants refused to acknowledge that they had provided him with their ad dress. Even when liberally construed in accordance with his pro se status, such claims do not amount to constitutional violations. Plaintiff was accused of establishing a relationship with an employee to circumvent inmate mail correspondence, a Level II offense. (Pet. at 4.) The TDCJ Offender Disciplinary Handbook states that "[e]stablishing an inappropriate relationship with a staff member, an approved volunteer, or contract employee" includes "establishing or continuing any type of personal relationship with staff or volunteers that jeopardizes, or has the potential to jeopardize the security of the agency or which compromises the effectiveness of the staff member, volunteer or contract employee." The disciplinary provision focuses on the action of the inmate. Based on a review of the provision, it appears that an inmate can be punished for such actions regardless of the staff member's role in establishing the relationship. In other words, it does not appear that Defendants' failure to state that they had given their address to Plaintiff impacted the disciplinary action taken against Plaintiff in any way. Because it is this disciplinary action that Plaintiff complains violated his Constitutional rights, he has not shown that Defendants' actions in any way caused him to be deprived of his rights.
B. State Law Claims
Once all federal claims are dismissed from a complaint, a court has discretion to hear the remaining state claims. Lacy v. ADP, Inc., 2001 WL 1006064, at *5 (N.D. Tex. Aug. 14, 2001) (citing 28 U.S.C. § 1367(c)(3) and United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed. 2d 218 (1966)). In determining whether to retain jurisdiction over the state law claims, the court considers the provisions of 28 U.S.C. § 1367(c) as well as the factors of judicial economy, convenience, fairness, and comity. Jones v. Adam's Mark Hotel, 840 F.Supp. 66, 69 (S.D.Tex. 1993). Ordinarily, weighing those factors ". . . will point toward declining to exercise jurisdiction over the remaining state-law claims." Lacy v. ADP, Inc., 2001 WL 1006064, at *5 (quoting Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n. 7 (1988)).
The factors of judicial economy, convenience, fairness, and comity weigh in favor of declining to exercise pendent jurisdiction. Although this case has been pending for nearly a year, one of the defendants was not served until December 20, 2004. This case is still in the preliminary stages, and trial is several months away. Thus, the interest of judicial economy favors declining to exercise pendent jurisdiction. See Parker Parsley Petroleum Co. v. Dresser Industries, 972 F.2d 580, 587 (5th Cir. 1992) (affirming district court's decision to decline to exercise pendent jurisdiction over state claims because although "substantial development" had occurred in the case, discovery was not complete and trial was still several weeks away). In addition, neither party has presented any evidence demonstrating that refiling in state court would create an undue burden on the parties. See Search Intern., Inc. v. Snelling and Snelling, Inc., 168 F. Supp. 2d 621, 627 (N.D. Tex. 2001). Because all the parties are Texas residents and no federal claims remain, declining to exercise pendent jurisdiction also serves the interest of comity. See id. (finding that the interests of comity dictate that Texas' interest in the case was greater than that of the federal judiciary because federal issues were dismissed and both parties were Texas residents).
Accordingly, if the Court dismisses Defendant's First, Fifth, Eighth, and Fourteenth Amendment claims, it should decline to exercise pendent jurisdiction over his remaining state law claims. Those state law claims should be dismissed without prejudice to refiling in state court. See Carnegie-Mellon, 484 U.S. at 350 (stating that if a federal court declines to exercise pendent jurisdiction over state claims, those claims should dismissed without prejudice to refiling in state court).
III. CONCLUSION
For the reasons stated herein, the Court RECOMMENDS that Defendants' motions to dismiss be GRANTED, and Plaintiff's First, Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution be DISMISSED without prejudice for failure to exhaust administrative remedies, and that Plaintiff's state law claims, including those arising under the Texas Constitution and for libel, slander, negligence, and unprofessional conduct, be DISMISSED without prejudice.
SO RECOMMENDED.