United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION AND ORDER
L. Bunning, United States District Judge
matter is before the Court upon Defendants' Second Motion
for Summary Judgment, arguing that they are entitled to
judgment as a matter of law because Plaintiff Nathanial Brown
failed to exhaust his administrative remedies. (Doc. # 71).
Specifically, Defendants claim that because Plaintiff failed
to file his grievances within the five-day deadline,
Plaintiff's grievances were properly denied as untimely
and this action is barred under the Prisoner Litigation
Reform Act (“PLRA”) for failure to properly
exhaust administrative remedies. Id. at 2. Plaintiff
having responded to Defendants' Motion (Doc. # 72), and
Defendants having filed their reply (Doc. # 73), the Motion
is ripe for review. For the reasons set forth below, the
Motion is granted.
Standard of Review
judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). The
moving party has the initial burden of “showing the
absence of any genuine issues of material fact.”
Sigler v. Am. Honda Motor Co., 532 F.3d 469, 483
(6th Cir. 2008). Once the moving party has met its burden,
the nonmoving party must cite to evidence in the record upon
which “a reasonable jury could return a verdict”
in its favor; a mere “scintilla of evidence” will
not do. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248-52 (1986). At the summary-judgment stage, a court
“views the evidence in the light most favorable to the
nonmoving party and draws all reasonable inferences in that
party's favor.” Slusher v. Carson, 540
F.3d 449, 453 (6th Cir. 2008).
Compliance with the grievance policy was not unavailable to
PLRA requires that a prisoner exhaust his administrative
remedies before filing suit in the district court. Jones
Bey v. Johnson, 407 F.3d 801, 805 (6th Cir. 2005).
Specifically, it states: “No action shall be brought
with respect to prison conditions under section 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.” Id. (citing 42 U.S.C. §
1997e(a) (2004)). The prisoner has the burden of proving that
a grievance has been fully exhausted. Baxter v.
Rose, 305 F.3d 486, 488 (6th Cir. 2002). Exhaustion of
administrative remedies under the PLRA is not jurisdictional;
it is mandatory, even if proceeding through the prison
administrative system would be futile. Wyatt v.
Leonard, 193 F.3d 876, 879 (6th Cir. 1999). In the event
that a prisoner has failed to exhaust his administrative
remedies, the complaint must be dismissed. Jones
Bey, 407 F.3d at 806.
prisoner to properly exhaust his administrative remedies, he
must strictly comply with the facility's deadlines and
other procedural rules because “no adjudicative system
can function effectively without imposing some orderly
structure on the course of its proceedings.”
Woodford v. Ngo, 548 U.S. 81, 90-1 (2006). Strict
compliance is necessary because “a prisoner wishing to
bypass available administrative remedies could simply file a
late grievance without providing any reason for failing to
file on time, and then when the “prison rejects the
grievance as untimely, the prisoner [could] proceed directly
to federal court.” Id. at 91. Of particular
relevance here, “an untimely or otherwise improper
grievance, even though appealed through all steps of a
grievance procedure, does not fulfill the PLRA exhaustion
respect, Plaintiff has failed to fulfill the PLRA's
exhaustion requirement because he was required to file
“[a] grievance about a personal and specific incident
… within five (5) business days after the incident
occur[ed], ” but he did not file his grievance until
nearly a month after the incident. (Doc. # 71-1 at 3).
comply with the PLRA, however, a prisoner need exhaust only
“available” administrative remedies. Ross v.
Blake, 136 S.Ct. 1850 (2016). That is, an inmate must
exhaust available remedies, but failure to exhaust
unavailable remedies will not bar his claim. For
purposes of the PLRA, “available” means
“‘capable of use for the accomplishment of a
purpose, ' and that which ‘is accessible or may be
obtained.'” Id. at 1859. Thus, before the
Court can conclude that Plaintiff's claim is barred under
the PLRA for failure to exhaust, the Court must consider
whether the grievance procedure was truly available
to Plaintiff during the nine-day period in which he was
placed in segregation.
Plaintiff urges the Court to find that he lacked an
available administrative remedy, thereby excusing
his obligation to exhaust. (Doc. # 72). Plaintiff's
argument is two-fold. First, he argues that because he was on
a 15-minute watch and was denied access to pen and paper, the
grievance procedure was made unavailable to him. Id.
at 4. Second, he argues that because he was not made aware of
any additional avenues to timely file his grievances, the
grievance procedure was made unavailable to him by the
Defendants and prison officials. Id.
present a compelling argument to refute Plaintiff's
notion that the grievance procedure was unavailable to him.
In essence, Defendants argue that Plaintiff's segregation
did not prohibit him from filing a grievance. (Doc. # 71-1 at
5). Defendants point to two avenues that were available to
Plaintiff, despite being held on a 15-minute watch. First,
Plaintiff could have contacted the prison's Grievance
Coordinator who would have written and filed the grievance on
the Plaintiff's behalf. Id. Second, Plaintiff
could have orally requested to file a motion for extension of
time to file a grievance or request. Id. at 7.
Court agrees with the Defendants. The Sixth Circuit
“requires an inmate to make affirmative efforts to
comply with the administrative procedures” and the
Court is left to analyze “whether those efforts to
exhaust were sufficient under the circumstances.”
Risher v. Lappin, 639 F.3d 236, 240 (6th Cir. 2011).
Here, Plaintiff has not alleged that he took any affirmative
steps to file his grievances. Instead, Plaintiff has merely
alleged that he was unable to file the grievances because he
did not have access to pen and paper and was unaware ...