United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION AND ORDER
HORN BOOM UNITED STATES DISTRICT COURT JUDGE
Craig, an inmate at the United States Penitentiary-McCreary
(“USP-McCreary”) in Pine Knot, Kentucky, has
filed a civil rights complaint on the Court's standard
complaint form alleging First Amendment claims, as well as a
supplemental complaint alleging a violation of his Eighth
Amendment rights. [R. 1; R. 6] While the Court will
DISMISS Craig's First Amendment claims
without prejudice, the Court finds that Craig's recently
articulated Eighth Amendment claim SURVIVES
the Court's preliminary screening.
without an attorney, Cornelius Craig has filed a civil rights
complaint pursuant to the doctrine announced in Bivens v.
Six Unknown Federal Narcotics Agents, 403 U.S. 388
(1971). [R. 1] Craig's complaint states that since
December 8, 2017, when he first began serving time in
USP-McCreary's Special Housing Unit (“the
SHU”), he has been denied access to “newspapers,
magazines and or unrestricted access to the courts.”
Id. at pp. 2. Craig goes on to affirmatively state
that he did not file a grievance regarding the facts of his
First Amendment claims under Bureau of Prisons regulations.
See Id. at pp. 4. When asked why he failed to file a
grievance or otherwise exhaust his administrative remedies,
the complaint simply states that “Plaintiff did not
pursue administrative remedies after being made aware of
institutional SHU policies by Defendants and institutional
staff.” Id. at pp. 5.
more recently filed supplemental complaint sets forth an
Eighth Amendment claim. [R. 6] Craig contends that, though he
should be receiving recreation time five days a week for at
least one hour a day and although he sometimes has been
afforded this recreation time, he has been
“consistently” denied the opportunity to exercise
while serving time in the SHU. Id. at pp. 3. Unlike
with respect to his First Amendment claims, Craig asserts
that he did exhaust his administrative remedies with respect
to this claim. Id. at pp. 2.
the terms of 28 U.S.C. §§ 1915 and 1915A, the Court
conducts a preliminary screening of Craig's civil rights
claims. Pursuant to the relevant statutes, the Court must
dismiss Craig's complaint at any time if the action is
frivolous, malicious, or fails to state a claim upon which
relief may be granted. See 28 U.S.C. §
1915(e)(2)(B). At this stage of the proceedings, the Court
accepts Craig's factual allegations as true and liberally
construes Craig's legal claims in his favor. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
the terms of the Prison Litigation Reform Act, a prisoner may
not bring a civil rights claim until he first exhausts his
available administrative remedies. See 42 U.S.C.
§ 1997e(a). Ordinarily, a prisoner's failure to
exhaust his administrative remedies is an affirmative defense
that should not be raised by the Court sua sponte.
See, e.g., Jones v. Bock, 549 U.S. 199,
211-15 (2007). However, courts, including the Sixth Circuit
Court of Appeals, have made clear that sua sponte
dismissal may be appropriate if a prisoner's failure to
exhaust is obvious from the face of the complaint. See
Id. at 215; Carbe v. Lappin, 492 F.3d 325, 328
(5th Cir. 2007) (“[A] court can dismiss a case prior to
service on defendants for failure to state a claim predicated
on failure to exhaust, if the complaint itself makes clear
that the prisoner failed to exhaust.”); Barnett v.
Laurel Cnty., Ky., No. 16-5658, 2017 WL 3402075 (6th
Cir. Jan. 30, 2017).
case, Craig admits in his complaint that he did not exhaust
his administrative remedies with respect to his First
Amendment claims. [R. 1, at pp. 4-5] “There is no
question that exhaustion is mandatory under the PLRA and that
unexhausted claims cannot be brought in court.”
Jones, 549 U.S. at 211. Furthermore, “the
PLRA's exhaustion requirement applies to all inmate suits
about prison life, whether they involve general circumstances
or particular episodes, and whether they allege excessive
force or some other wrong.” Porter v. Nussle,
534 U.S. 516, 532 (2002). The Court, therefore, will refrain
from addressing the merits of Craig's First Amendment
claims and will dismiss those claims without prejudice. If
Craig wishes to pursue those claims in federal court, he
should first pursue them via the Federal Bureau of
Prisons' Inmate Grievance System and related appeals
process. See, e.g., 28 C.F.R. § 542.13, .14(a).
Craig's supplemental Eighth Amendment claim, the Sixth
Circuit Court of Appeals has made clear that it “has
never set a minimum amount of time a prisoner must have
access to outdoor recreation.” Argue v.
Hofmeyer, 80 Fed.Appx. 427, 430 (6th Cir. 2003).
Nevertheless, the Sixth Circuit has acknowledged that
“a total or near-total deprivation of exercise or
recreational opportunity, without penological justification,
violates Eighth Amendment guarantees. Inmates require regular
exercise to maintain reasonably good physical and
psychological health.” Rodgers v. Jabe, 43
F.3d 1082, 1086 (6th Cir. 1995) (quoting Patterson v.
Mintzes, 717 F.2d 284 (6th Cir. 1983)). Resolving
Craig's Eighth Amendment claim warrants a response from
the Defendants. Because Craig is proceeding in forma
pauperis, the United States Marshals Service will serve
the summons and complaint on Craig's behalf. See
Fed. R. Civ. P. 4(c)(3); 28 U.S.C. § 1915(d).
and with the Court being otherwise sufficiently advised,
IT IS HEREBY ORDERED AS FOLLOWS:
1. On the Court's initial screening pursuant to 28 U.S.C.
§§ 1915(e)(2), 1915A, Craig's First Amendment
claims set forth on his civil rights complaint form
[R. 1] are DISMISSED WITHOUT
PREJUDICE for Craig's failure to exhaust his
2. Craig's Eighth Amendment claim set forth in his
supplemental complaint [R. 6] may
3. A Deputy Clerk shall prepare two “Service
Packets” for service upon the Defendants. The Service
Packets shall include:
a. a completed summons form;
b. the complaint [R. 1] and supplemental