United States District Court, W.D. Kentucky, Paducah
MEMORANDUM OPINION AND ORDER
B. Russell, Senior Judge.
matter is before the Court on a Motion to Dismiss for Failure
to Exhaust Administrative Remedies, [R. 21], by Defendants
James Beavers, James Beeler, Troy Belt, Jesse Coombs, Tami
Darnell, Steven Ford, Skyla Grief, Terry Peede, Gage
Rodriguez, H. Chris Vinson, and Randy White (“the
Defendants”). Plaintiff Michael Cooper responded, [R.
37]. This matter is now ripe for adjudication. For the
reasons stated herein, the Defendants' Motion to Dismiss
for Failure to Exhaust Administrative Remedies, [R. 21], is
general facts of this case are described in the Court's
prior opinion, Cooper v. Vinson et. al., No.
5:17-CV-P10-TBR, 2017 WL 34552360 (W.D. Ky. Aug. 08, 2017).
There, the Court ordered the following claims to continue
beyond initial review: the First Amendment claim that
Plaintiff has been denied access to two particular magazines
against Defendants White, Ford, and Vinson in their
individual capacities for all relief and in their official
capacities for equitable relief; the retaliation claims
against Defendants Belt, Rodriguez, Beavers, Peede, Coombs,
Bauer, Beeler, and Grief in their individual capacities for
all relief and in their official capacities for equitable
relief; the Eighth Amendment, excessive-force claim against
Defendants Peede and Coombs in their individual capacities
for all relief; and the Eighth and Fourteenth Amendment
claims regarding Plaintiff's long-term placement in
segregation against Defendants White, Grief, Belt, and Beeler
in their individual capacities for all relief and official
capacities for equitable relief. See Cooper, No.
5:17-CV-P10-TBR, 2017 WL 3452360, at *8. Currently before the
Court is the Defendants' Motion to Dismiss for Failure to
Exhaust Administrative Remedies, [R. 21].
the Defendants do not name a specific provision under the
Federal Rules of Civil Procedure, the Court assumes that the
Defendants move to dismiss this action under Rule 12(b)(6),
as it is commonly used in situations like the one at hand.
See generally Daugherty v. K.S.P. Med. Dep't,
No. 5:17-CV-P41-TBR, 2018 WL 1095820 (W.D. Ky. Feb. 27,
2018); Clark v. Ramey, No. 5:17CV-P44-GNS, 2018 WL
810589 (W.D. Ky. Feb. 8, 2018); Prather v. Corr. Care
Sols., No. 3:16-CV-P60-JHM, 2016 WL 7175629 (W.D. Ky.
Dec. 7, 2016).
Rule 12(b)(6), to 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127
S.Ct. 1955, 167 L.Ed.2d 929 (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, 129 S.Ct. 1937 (citing
Twombly, 550 U.S. at 556, 127 S.Ct. 1955). The
complaint need not contain “detailed factual
allegations, ” yet must provide “more than an
accusation.” Id. (citing Twombly, 550
U.S. at 555, 127 S.Ct. 1955). 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,
127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Estelle
v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d
Defendants argue that the complaint should be dismissed
because Cooper failed to show that he exhausted his
administrative remedies by completing the appeals process for
both grievable and non-grievable issues. [See R.
21 at 2-3 (Motion to Dismiss).] The 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. at
211, 127 S.Ct. 910 (“There is no question that
exhaustion is mandatory under the PLRA and that unexhausted
claims cannot be brought in court”). In order to
exhaust administrative remedies, prisoners must complete the
administrative review process in accordance with the
deadlines and other applicable procedural rules established
by state law. Jones v. Bock, 549 U.S. 199, 218-19,
127 S.Ct. 910. “Proper exhaustion demands compliance
with an agency's deadlines and other critical procedural
rules.” Woodford v. Ngo, 548 U.S. 81, 90, 126
S.Ct. 2378, 165 L.Ed.2d 368 (2006). Importantly, however,
“failure to exhaust administrative remedies under the
PLRA is an affirmative defense that must be established
by the defendants.” Napier v. Laurel Cty.
Ky., 636 F.3d 218, 225 (6th Cir. 2011) (citing
Jones, 549 U.S. at 204, 127 S.Ct. 910) (emphasis
Cooper's Complaint, [R. 1-1], and Supplemental Complaint,
[R. 6], Cooper alleges that he “used the prisoner
grievance procedure available at Kentucky State Penitentiary
(K.S.P) to try to solve these problems . . ..” [R. 6-1
at 7; see also R. 1-1 at 7.] The Defendants retort
that Cooper did not file grievances regarding confinement in
long-term segregation, retaliation, and use of excessive
force, nor did he timely appeal the rejection of his incoming
mail. [R. 21 at 2-3.] As support, the Defendants attached
affidavits of John Dunn and Randy White. [Id.] The
Sixth Circuit has concluded that the exhaustion affirmative
defense is best raised in a motion for summary judgment.
See, e.g., Rembisz v. Lew, 590 Fed.Appx. 501, 504
(6th Cir. 2014); LaFountain v. Martin, 334 Fed.Appx.
738, 740 (6th Cir. 2009) (quoting Fed.R.Civ.P. 56(c)). The
Sixth Circuit came to this conclusion because proof of lack
of exhaustion generally requires resort to matters outside
the pleadings, such as affidavits or documentary evidence.
See Wysocki v. Int'l Bus. Mach. Corp., 607 F.3d
1102, 1104 (6th Cir. 2010). This is precisely what the
Defendants ask the Court to do by resorting to the affidavits
of Dunn and White. As the Court has previously stated,
considering materials outside the pleadings, such as these
affidavits, is not permissible at this stage. See Clark
v. Ramey, No. 5:17CV-P44-GNS, 2018 WL 810589, at *5
(W.D. Ky. Feb. 8, 2018) (citing Weiner v. Klais &
Co., Inc., 108 F.3d 86, 88 (6th Cir. 1997)) (stating
that considering an affidavit attached to a motion to dismiss
“would require the Court to consider materials outside
the pleadings, which is not permissible at this
stage”). Therefore, the Defendants' Motion to
Dismiss for Failure to Exhaust Administrative Remedies, [R.
21], is DENIED.
foregoing reasons, IT IS HEREBY ORDERED: the
Defendants' Motion to Dismiss for Failure to Exhaust
Administrative Remedies, [R. 21], is DENIED.