United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
L. Bunning United States District Judge.
McBee is an inmate confined at the Campbell County Detention
Center (“CCDC”). McBee has filed a pro
se civil rights complaint pursuant to 42 U.S.C. §
1983. (Doc. # 1). The Court must conduct a preliminary review
of McBee's complaint because he has been granted
permission to proceed in forma pauperis and because
he asserts claims against government officials. 28 U.S.C.
§§ 1915(e)(2), 1915A. A district court must dismiss
any claim that is frivolous or malicious, fails to state a
claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief.
Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir.
original Complaint in McBee v. Campbell Co. Det.
Ctr., No. 2:16-cv-57-WOB (E.D. Ky. 2016), asserted over
a dozen claims loosely related to the ongoing criminal
prosecution against him and to the conditions of his
confinement at CCDC. (Doc. # 1). In that case, the Court
screened McBee's complaint and concluded that it
improperly joined numerous but unrelated claims against a
variety of defendants, and ordered that these claims be
severed into distinct cases. (Doc. # 3). This is one of those
new cases. Before this Court are only McBee's fifth claim
that the jail sold him postage stamps at a markup (Doc. # 1
at 16); his ninth claim that the jail only permits him to
shave twice a week with a dull razor (Doc. # 1 at 20-21); and
his twelfth claim related to the environment of his cell and
shower and the manner of his supervision and monitoring (Doc.
# 1 at 23-26). (See Doc. # 3 at 7, 15).
before a prisoner can file suit regarding the conditions of
his confinement, federal law requires him or her to first
exhaust all available administrative remedies at the jail. 42
U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199,
211 (2007) (“There is no question that exhaustion is
mandatory under the PLRA and that unexhausted claims cannot
be brought in court.”). When it is apparent from the
face of the complaint that he or she failed to do so, the
complaint may be dismissed without prejudice upon initial
review. Jones, 549 U.S. at 214-15; see also
Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007)
(where complaint made clear that prisoner failed to exhaust
administrative remedies, district court may dismiss it
sua sponte for failure to state a claim);
Barnett v. Laurel Cty., Ky., No. 16-5658, 2017 WL
3402075, at *1 (6th Cir. Jan. 30, 2017); Fletcher v.
Myers, No. 5:11-141-KKC, 2012 WL 1802618, at *2 (E.D.
Ky. May 17, 2012), aff'd, No. 12-5630 (6th Cir.
Jan. 4, 2013) (“Because Fletcher's failure to
exhaust, or to attempt to exhaust, administrative remedies is
apparent from the face of his complaint, the district court
properly dismissed Fletcher's complaint on that
McBee admits in his Complaint that he did not exhaust his
administrative remedies before filing suit. (Doc. # 1 at
34-35). He does offer a variety of excuses in an attempt to
justify that failure, but none of them are sufficient.
McBee's primary contention is that he did not file
grievances regarding his claims because prison guards would
not give him the “official” grievance forms.
(Doc. # 1 at 34). But McBee acknowledges in his Complaint
that prison guards did provide him with a grievance
form earlier in the year. (Doc. # 1 at 34, 36). More
fundamentally, even if the guards did not give McBee the
11 official grievance forms he requested,
id. at 34, a plaintiff's allegation that prison
officials refused to give him grievance forms does not
satisfy the exhaustion requirement. Belser v. James,
No. 16-2578, 2017 WL 5479595, at *2 (6th Cir. 2017) (citing
Arbuckle v. Bouchard, 92 F. App'x 289, 291 (6th
Cir. 2004) (“[Plaintiff]'s bald assertion that [the
grievance coordinator] refused to give him grievance forms is
not enough to excuse the complete absence of evidence that he
attempted to exhaust his administrative remedies for the many
claims he raised in his district court complaint.”)).
In addition, McBee does not allege that he tried to and was
prevented from filing grievances on an ordinary sheet of
paper; instead, he accuses prison officials of playing
“mind games.” (Doc. # 1 at 35). That is not a
sufficient basis for McBee to disregard the jail's
also claims the detention center “does not have a
coherent grievance policy, ” and complains that the
jail did not hold an orientation session to explain its
grievance procedures to new inmates. (Doc. # 1 at 35). But
“a prisoner's ‘failure to exhaust cannot be
excused by his ignorance of the law or the grievance
policy.'” Barnett, 2017 WL 3402075, at *3
(quoting Napier v. Laurel County, 636 F.3d 218, 221
n.2 (6th Cir. 2011)). Nor does his conclusory assertion that
CCDC's grievance procedure is “arbitrary” and
“arbitrarily applied” (Doc. # 1 at 35) justify
his refusal to follow it: 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.).
admits in his Complaint that he did not exhaust his
administrative remedies, and his attempts to explain that
clear failure are not sound. The exhaustion requirement is a
strong one, and where the plaintiff has not complied with it
a district court may properly dismiss the complaint without
prejudice to afford the plaintiff the opportunity to properly
invoke and follow the jail's grievance procedures with
respect to his concerns. Napier, 636 F.3d at 222.
Accordingly, IT IS ORDERED as follows:
Plaintiff Richard McBee's Complaint (Doc. # 1 at 16,
20-21, 23-26, Claims 5, 9, and 12) is DISMISSED
This action is STRICKEN from the ...