United States District Court, W.D. Kentucky, Louisville Division
L.D. BURNETT, Plaintiff,
DR. HACKMAN et al., Defendants.
MEMORANDUM OPINION AND ORDER
J. Hale, United States District Court Judge
a 42 U.S.C. § 1983 action brought by a pro se
prisoner. This matter is now before the Court on
Defendants' joint motion to dismiss pursuant to 42 U.S.C.
§ 1997e and Fed.R.Civ.P. 12(b)(6) (DN 25). Plaintiff did
not file a response, but the Court concludes that it can rule
on the motion without the benefit of a response. For the
reasons stated below, the motion will be denied.
originally filed the instant complaint in the United States
District Court for the Eastern District of Kentucky. That
court dismissed Plaintiff's claims against the Kentucky
Correctional Psychiatric Center (KCPC) and the Kentucky
Department of Corrections; severed the claims against
Defendants Dr. Hackman and Dr. Amy Truette, whom Plaintiff
identified as psychiatrists at KCPC; and transferred the
claims against those Defendants to this Court finding that
proper venue lies here.
alleges that he was housed in KCPC for a mental evaluation
ordered by the Boyd Circuit Court. He states the following:
While at K.C.P.C. the treatment team including psychiatrist
took me off my mental medication after only being their a
short time. After being took off this medication I started
hullicinating both audibily and visully those hullicinations
were causing suicidal behavior caused me to hear voices and
becom verry depressed. And to try to comitt suacide I cut my
wrist this attempt on my life happened at Boyd County Jail.
And I was transported to King's Daughter's Medical
Center in Ashland, KY. I was kept on suicide watch multiple
times and multiple week's at a time untill mont's
later I was put back on my psych meds that K.C.P.C. took me
off of. Another doctor put me back on them at B.C.D.C. If it
were not for being took of my meds by the Kentucky
Correctional Psychiatric Center staff these attempt on my
life would not been attempted nor the mental grief would not
have occurred. They said I was showing no symptoms of being
sick but I was medicated at the time.
initial review of the action pursuant to 28 U.S.C. §
1915A and McGore v. Wrigglesworth, 114 F.3d 601, 604
(6th Cir. 1997), overruled on other grounds by Jones v.
Bock, 549 U.S. 199 (2007), which applies the same
standard governing this Rule 12(b)(6) motion, the Court
allowed Plaintiff's individual-capacity claims against
Defendants Hackman and Truett to proceed for further
survive a motion to dismiss, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “[A] district court must (1) view the
complaint in the light most favorable to the plaintiff and
(2) take all well-pleaded factual allegations as true.”
Tackett v. M & G Polymers, USA, LLC, 561 F.3d
478, 488 (6th Cir. 2009) (citing Gunasekera v.
Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations
omitted)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 556). The
complaint need not contain “detailed factual
allegations, ” yet must provide “more than an
accusation.” Id. (citing Twombly, 550
U.S. at 555). In addition, “[a] pro
se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 93 (2007) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)).
Failure to Exhaust Administrative Remedies
Prison Litigation Reform Act (PLRA) bars a civil rights
action challenging prison conditions until the prisoner
exhausts “such administrative remedies as are
available.” 42 U.S.C. § 1997e(a); see also
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.”).
Failure to exhaust is an affirmative defense, and the burden
is on the defendant to prove non-exhaustion. Jones v.
Bock, 549 U.S. at 216. The Sixth Circuit generally has
held that exhaustion is best raised in a motion for summary
judgment. See, e.g., Rembisz v. Lew, 590 F.
App'x 501, 504 (6th Cir. 2014); LaFountain v.
Martin, 334 F. App'x 738, 740 (6th Cir. 2009)
(quoting Fed.R.Civ.P. 56(c)). The rare exception occurs where
the plaintiff includes allegations in the complaint that
permit adjudication of an exhaustion defense on a motion to
dismiss. See Rembisz v. Lew, 590 F. App'x at 504
(acknowledging that the exhaustion defense may be
“susceptible to resolution on a motion to dismiss if a
plaintiff affirmatively pleads himself out of court”)
(citing Jones, 549 U.S. at 215)).
argue that the action should be dismissed because Plaintiff
concedes in the complaint that he failed to exhaust all
administrative remedies available to him before filing suit.
Defendants maintain that Plaintiff “admits that he
failed to file a grievance under Bureau of Prisons
regulations.” Plaintiff filed the complaint on a
complaint form. A section of the form deals with the
exhaustion of administrative remedies and contains separate
subsections for federal, state, and county or city prisoners.
In the section pertaining to federal prisoners, the form
asks, “Did you file a grievance regarding the facts in
this Complaint under Bureau of Prisons regulations?”
Plaintiff checked “No.” In the same section, the
form asks, “What was the result?” Plaintiff
answered, “I filed request forms sevrail could not get
a grievance form.” The form next asks, “If you
did not file a grievance, why not?” Plaintiff
responded, “Could not get a grievance form.”
section pertaining to state prisoners, Plaintiff left the
questions blank. In the section pertaining to county or city
prisoners, the form asks the plaintiff to attach a copy of
the jail's grievance policy. To that Plaintiff responded,
“But they would not honner their grievance
system.” Where the form asks, “Did you file a
grievance regarding these facts?” Plaintiff wrote,
“No.” The form also asks, “What steps did
you take to use the grievance process?” Plaintiff
answered, “Ask for grievance was denied.” In