United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
L. BUNNING, UNITED STATES DISTRICT JUDGE.
2016, Plaintiff Richard McBee filed a pro se
civil-rights complaint in this Court asserting over a dozen
claims, loosely related to the ongoing criminal prosecution
against him and to the conditions of his confinement at the
Campbell County Detention Center. (Doc. # 1); see also
McBee v. Campbell County Detention Center, No.
2:16-cv-57-WOB (E.D. Ky. 2016) (Doc. # 11 therein). The Court
conducted an extensive preliminary review of McBee's
Complaint and determined that he improperly alleged multiple
distinct claims against several different defendants in one
case. (Doc. # 3). The Court dismissed a number of McBee's
claims and then severed his remaining claims from his
Complaint and directed the Clerk of the Court to open new
civil actions in which those unrelated claims could be
resolved. See Id. This case is one of those new
civil actions, and it involves only the sixth, eighth, tenth,
and eleventh claims asserted in the Complaint. Specifically,
in this action, McBee alleges that the defendants were
deliberately indifferent to his serious medical needs in
violation of the Eighth Amendment. (Doc. # 1 at 17-23).
Court, however, will dismiss this action without prejudice
because McBee has failed to fully exhaust his administrative
remedies. Indeed, McBee repeatedly indicates in his
Complaint and in his attached submissions that he did not
exhaust his administrative remedies. (Doc. # 1 at 34-35).
Although McBee attempts to minimize this fact by suggesting
that he was “technically” unable to exhaust his
administrative remedies, (Doc. #1 at 35), the Sixth Circuit
has held that the exhaustion requirement is a strong one and
that it is proper for a district court to dismiss the
complaint when the plaintiff fails to comply with that
requirement. See Napier v. Laurel Cty., Ky., 636
F.3d 218, 222 (6th Cir. 2011).
sure, McBee offers a number of explanations for why he did
not exhaust his administrative remedies. However, none of
those reasons excuse his failure to comply with the
exhaustion requirement. For example, when McBee was
specifically asked why he did not file a grievance, he said
that prison officials would not give him the necessary forms.
(Doc. # 1 at 34). But McBee acknowledges in his Complaint
that prison officials did provide him with a
grievance form earlier in the year. Id. at 34, 36.
Even if it is true that those officials did not provide McBee
with the eleven copies of the form he requested, the Sixth
Circuit has noted that a plaintiff's allegation that
prison officials refused to give him grievance forms is not
enough to excuse the exhaustion requirement. See Belser
v. James, No. 16-2578, 2017 WL 5479595, *2 (6th Cir.
2017). Plus, McBee does not allege in any clear way that he
tried to file a grievance using another piece of paper;
instead, he admits he did not exhaust his administrative
remedies and accuses prison officials of, among other things,
using “mind games.” (Doc. # 1 at 35). That is not
enough to overcome the exhaustion requirement.
also claims the Detention Center “does not have a
coherent grievance policy, ” and complains that prison
officials do not hold an orientation with inmates to discuss
the pertinent grievance procedures. Id. However, the
Sixth Circuit has rejected similar arguments and held that a
prisoner's “failure to exhaust cannot be excused by
his ignorance of the law or the grievance policy.”
Napier, 636 F.3d at 221 n.2 (6th Cir. 2011). Thus,
there is no merit to McBee's claims regarding his lack of
knowledge of the applicable grievance policies.
McBee claims that the Detention Center's grievance
procedures are “arbitrary” and “arbitrarily
applied.” (Doc. # 1 at 35). But McBee does not explain
these statements in any meaningful way, nor does he allege
that he was preventing from pursuing grievances up the chain
of command within the prison. As the Sixth Circuit has
recognized, a prisoner is required to exhaust his
administrative remedies even if he subjectively believes a
remedy is not available and even when he believes the
procedures are “ineffectual or futile.”
Barnett, 2017 WL 3402075, at *3 (citing
Napier, 636 F.3d at 222).
simply, McBee's failure to exhaust, or even attempt to
exhaust, his administrative remedies is apparent from the
face of his Complaint, and for that reason, the Complaint
must be dismissed. Accordingly, IT IS
ORDERED as follows:
(1) Plaintiff Richard McBee's Complaint (Doc. # 1 at
17-23, Claims 6, 8, 10, and 11) is DISMISSED WITHOUT
(2) This action is STRICKEN from the
Court's active docket; and
(3) A corresponding judgment will be entered
 Although a “prisoner's
failure to exhaust administrative remedies is an affirmative
defense that ordinarily should not be raised by the court
sua sponte, ” a “sua sponte
dismissal may be appropriate where the prisoner's failure
to exhaust is obvious from the face of the complaint.”
Barnett v. Laurel Cty., Ky., No. 16-5658, 2017 WL
3402075, *1 (6th Cir. Jan. ...