United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
HORN BOOM, UNITED STATES DISTRICT COURT JUDGE
se plaintiff Cornelius Craig previously filed a civil
rights complaint alleging various claims, most of which the
Court dismissed upon screening. [R. 1; R. 8] Defendants
Kizziah and Thompson then moved to dismiss Craig's
surviving Eighth Amendment claim [see R. 22], and
that matter is now ripe for the Court's review. The
defendants argue this case should be dismissed because, among
other reasons, Craig failed to fully exhaust his
administrative remedies. See Id. Failure to exhaust
is an affirmative defense under the Prison Litigation Reform
Act (“PLRA”). See, e.g., Jones v.
Bock, 549 U.S. 199 (2007).
Craig's response to the defendants' motion to
dismiss, Craig does not deny that he failed to fully exhaust
his administrative remedies. Instead, relying on Ross v.
Blake, 136 S.Ct. 1850 (2016), he claims the remedy
process was “unavailable” to him and he thus is
excused from the exhaustion requirement in this case. [R.
28]; see also 42 U.S.C. § 1997e(a) (“No
action shall be brought with respect to prison conditions . .
. by a prisoner . . . until such administrative remedies
as are available are exhausted.”) (emphasis
Supreme Court has articulated three circumstances “in
which an administrative remedy, although officially on the
books, is not capable of use to obtain relief” for
purposes of the PLRA. Ross, 136 S.Ct. at 1859.
First, an administrative procedure is unavailable when
“it operates as a simple dead end-with officers unable
or consistently unwilling to provide any relief to aggrieved
inmates.” Id. Second, “an administrative
scheme might be so opaque that it becomes, practically
speaking, incapable of use.” Id. Finally, a
remedy is unavailable if prison officials “thwart
inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.”
Id. at 1860. Craig claims the first and third
circumstance apply to his situation. [See R. 28 at
pp. 2-3] The defendants-and ultimately the Court- disagree.
begin, Craig claims the grievance process “would have
simply served as an [sic] dead end cause” for him.
Id. at p. 3. In Ross v. Blake, the Supreme
Court articulated a “dead end” circumstance as
one where prison officials were unable or unwilling to
“provide any relief” to an inmate.
Ross, 136 S.Ct. at 1859 (emphasis added). The
Supreme Court further illustrated this circumstance by
likening it to (1) a situation where a prison handbook
directs inmates to submit grievances to a particular
administrative office but, in practice, that office lacks the
ability to consider grievance petitions; and (2) a situation
where “administrative officials have apparent
authority, but decline ever to exercise it.”
has not alleged a personal circumstance that rises to the
level of that described in Ross. Craig claims that
when he questioned the defendants about their Special Housing
Unit (“SHU”) policies, he was told “that
the policies in SHU would not change.” [R. 28 at p. 3]
But even if the defendants themselves were unwilling to
provide Craig with any relief, Craig does not allege that the
administrative process on the whole-particularly,
administrative appeals to the Regional Director or the
Central Office-would be futile. Nor does Craig claim that the
administrative process could provide him with no relief at
all, even if that relief did not come in the form of changing
SHU policy. Notably, where the administrative process is able
“to take some action in response to a
complaint”-even if the action is different than what
the inmate initially demands-administrative remedies remain
available for purposes of the PLRA. Booth v.
Churner, 532 U.S. 731, 737-41 (2001). Put another way,
the PLRA requires procedural exhaustion “regardless of
the fit between a prisoner's prayer for relief and the
administrative remedies possible.” Id. at 739.
an inmate's repeated use of the Bureau of Prison's
administrative remedy procedures demonstrates the remedy
process was not a dead end. See, e.g., Blissit
v. Fiquiris, 345 F.Supp.3d 931, 940 (S.D. Oh. 2018)
(finding that an inmate's own conduct in filing six
administrative remedy requests proved he had access to
available remedies and was capable of using them). Here,
Craig filed thirteen administrative remedy requests or
appeals during his tenure at USP-McCreary. [R. 22-1 at pp.
10-17] One of those requests addressed his desire for
increased recreation in the SHU, and the Warden's
response even granted Craig's request in part.
Id. at pp. 18-19. This demonstrates that the
administrative remedy process was not a dead end for Craig;
instead, Craig simply chose not to avail himself of it-at
least in a timely manner- with respect to the claims set
forth in this civil action.
also invokes the third circumstance detailed in Ross v.
Blake, which provides an exception for prisoners whose
exhaustion efforts are thwarted by threats or
misrepresentations. [R. 28 at p. 3] Whether an inmate fits
within this third circumstance ordinarily depends on whether
the prison officials' threats or other actions
“would deter a person of ordinary firmness from
continuing with the grievance process.” Himmelreich
v. Federal Bureau of Prisons, 766 F.3d 576, 577 (6th
Cir. 2014) (internal quotation marks and citations omitted).
Craig states that “when prison official Lt. Asher
retaliated against him for filing an [sic] complaint in this
Court, it may be read that Defendants sought to thwart and or
intimidate him from pursuing relief through the
administrative remedies or by the Court.” [R. 28 at p.
3] Craig goes on to claim that Lieutenant Asher “sought
out to intimidate and harass him by calling him a
‘snitch' in the presence of staff members as well
as inmates housed in the SHU.” Id. These
allegations present a timing problem and therefore do not fit
within the third Ross circumstance. Whether
Lieutenant Asher retaliated against Craig for filing the
complaint in this case has no bearing on Craig's ability
to exhaust his administrative remedies, as Craig was required
to pursue administrative relief before filing his
complaint. See, e.g., Freeman v. Francis,
196 F.3d 641, 645 (6th Cir. 1999). Instead, Craig's brief
indicates that Asher “acted with vindictiveness”
towards Craig because of this Court's prior orders in
this case, not because Craig attempted to pursue
administrative relief on the front end. [R. 28 at pp. 3-4]
Therefore, the severity of the threats and retaliation
ordinarily analyzed under Himmelreich, 766 F.3d at
577, is a non-issue. In any event, the Court notes that while
Craig claims that “the Defendants sought to thwart and
or intimidate him from pursuing relief through the
administrative remedies, ” [R. 28 p. 3], Lieutenant
Asher himself is not even a defendant to this case.
end, failure to exhaust is an affirmative defense under the
PLRA and Craig was “not required to specially plead or
demonstrate exhaustion in [his] complaint.” See
Bock, 549 U.S. at 216. Nevertheless, the defendants have
now asserted their affirmative defense, and for the reasons
stated above, Craig's argument that exhaustion was not
required in his case is without merit. The Court finds Craig
did, indeed, fail to fully exhaust his administrative
remedies with respect to the single remaining claim in this
case. [See R. 8 at p. 3 (describing the lone Eighth
Amendment claim to survive screening)] Accordingly, and with
the Court being otherwise sufficiently advised;
IS HEREBY ORDERED as follows:
Defendants' Motion to Dismiss or in the Alternative for
Summary Judgment [R. 22] is
Craig's pending claims are DISMISSED WITHOUT
PREJUDICE for failure to fully exhaust
administrative remedies; and
matter is CLOSED and
STRICKEN from the Court's active docket.