United States District Court, W.D. Kentucky, Louisville Division
YALE L. BALCAR et al. Plaintiffs
KENTUCKY STATE REFORMATORY et al. Defendants
MEMORANDUM OPINION AND ORDER
REBECCA GRADY JENNINGS, DISTRICT JUDGE.
April 10, 2018, Defendants filed a motion to dismiss the
remaining Plaintiffs, Carl J. Perry, Jr., and Clarence
Russell, in this civil action. Plaintiffs did not respond.
Court provided Plaintiffs with an additional opportunity to
respond to Defendants' motion to dismiss and warned
Plaintiffs that should they fail to do so, the Court would
take Defendants' motion under consideration without the
benefit of a response by Plaintiffs. Plaintiffs did not file
a response. The Court will now consider Defendants'
motion to dismiss (DN 24). For the foregoing reasons, that
motion will be granted.
are inmates at the Kentucky State Reformatory (KSR). The
Court allowed the following claims of the two remaining
Plaintiffs to proceed: their constitutional, Americans with
Disabilities Act, and Rehabilitation Act claims against
Defendants in their official capacities for declaratory
relief and in their individual capacities for all relief.
Plaintiffs alleged that they experienced retaliation in
violation of the First and Fourteenth Amendments; that they
were receiving very little food, and what they received was
of poor quality, in violation of the Eighth Amendment; and
that gang-members received better housing, jobs, and food
than they did. Plaintiff Perry, who is diabetic, also alleged
that he does not receive a diabetic diet, shoes, a safe
wheelchair, “and other needs.”
argue that Plaintiffs failed to exhaust their administrative
remedies prior to filing suit. They explain that grievance
procedures exist for the types of claims Plaintiffs alleged.
They attach the affidavit of John Dunn, Ombudsman for the
Kentucky Department of Corrections (KDOC). He avers that he
is the custodian of grievances; that he has reviewed the
original records for the pertinent two-year period of 2016
through 2017 and that he found that no grievances had been
filed by either Plaintiff in 2016 or 2017.
also attach the affidavit of Cookie Crews, the KDOC
Healthcare Services Administrator. She avers that she is the
custodian of healthcare grievances; that she reviewed the
original records for grievances filed for 2016, 2017, and
2018; and that neither Plaintiff had filed any healthcare
grievance during that time period. Defendants also attach a
copy of the KDOC CPP 14.6, which sets forth the Inmate
civil-rights cases are subject to the mandate of the Prison
Litigation Reform Act (PLRA) that “[n]o action shall be
brought with respect to prison conditions under [42 U.S.C.]
§ 1983 . . . by a prisoner confined in any jail, prison,
or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). To exhaust a claim, a prisoner must proceed
through all of the steps of a prison's or jail's
grievance process, because an inmate “cannot abandon
the process before completion and claim that he has exhausted
his remedies.” Hartsfield v. Vidor, 199 F.3d
305, 309 (6th Cir. 1999). The Supreme Court held in
Woodford v. Ngo, 548 U.S. 81, 93 (2006), that
failure to “properly” exhaust bars suit in
federal court. “Proper exhaustion” means that the
plaintiff complied with the administrative
“agency's deadlines and other critical procedural
rules because no adjudicative system can function effectively
without imposing some orderly structure on the course of its
proceedings.” Id. at 90-91.
exhaustion of administrative remedies is a matter in
abatement and not generally an adjudication on the merits,
” the defense of exhaustion “‘should be
raised in a motion to dismiss.'” Bryant v.
Rich, 530 F.3d 1368, 1374-75 (11th Cir. 2008) (citation
omitted). In matters of abatement, “it is proper for a
judge to consider facts outside of the pleadings and to
resolve factual disputes so long as the factual disputes do
not decide the merits and the parties have sufficient
opportunity to develop a record.” Id. at 1376
have demonstrated that Plaintiffs failed to exhaust their
administrative remedies prior to filing suit, and dismissal
without prejudice is, therefore, warranted. See Bell v.
Konteh,450 F.3d 651, 653 n.4 (6th Cir. 2006) (“It
is well established . . . that the appropriate disposition of
an unexhausted claim under the PLRA is dismissal without