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Thompson v. Robertson

United States District Court, M.D. Tennessee, Nashville Division

February 24, 2017

SHANNON LEE THOMPSON, Plaintiff,
v.
COUNSELOR ROBERTSON, ET AL., Defendants.

          HONORABLE ALETA A. TRAUGER DISTRICT JUDGE.

          REPORT AND RECOMMENDATION

          ALISTAIR E. NEWBERN United States Magistrate Judge.

         Currently pending in this pro se prisoner civil rights lawsuit is a Motion to Dismiss for Failure to Exhaust Grievance Procedures (Doc. No. 43), filed by Defendants Jerry Robertson, Victoria Mosley, Shcarey Polk, D'Andre Walker, Cassandra Benford, Vicki Freeman, Patrick Ryan, and Derrick Schofield. Plaintiff Shannon Lee Thompson filed a response to this motion in which she concedes that she has failed to exhaust administrative remedies, but argues that the fault for this failure lies with the administration of the Tennessee Prison for Women (TPW) and the Tennessee Department of Correction (TDOC). (Doc. No. 51.) For the reasons given below, the Magistrate Judge recommends that Defendants' motion be GRANTED and that this case be DISMISSED WITHOUT PREJUDICE for Thompson's failure to properly exhaust administrative remedies.

         I. Background

         Thompson is an amputee who is confined to a wheelchair. She was incarcerated at the Sullivan County Jail[1] from March 23, 2015, until her transfer to the Tennessee Prison for Women on July 15, 2015. (Doc. No. 1, PageID# 7, ¶ 1.) As Thompson states in her complaint, “[s]ince my arrival at Tennessee Prison for Women on June 15, 2015 I have addressed handicap accessibility” at that facility. (Doc. No. 1, PageID# 8, ¶ 7.) She alleges that she was first assigned to a cell that did not provide any disability accommodations before being moved to a cell that lacked handrails for balancing and contained a sink that was poorly positioned for inmates who use wheelchairs. (Id. at ¶¶ 7-8.) Finally, on October 30, 2015, she was moved to a cell that was problematic for other reasons, including having insufficient space to maneuver her wheelchair. (Id. at PageID# 9, ¶ 9.)

         Thompson experienced other problems outside of her cell, including an accident that resulted from her wheelchair being caught in a large crack in the pavement of a sidewalk and being prevented from taking a sidewalk better suited to wheelchair use because the sidewalk passed through the prison's maximum security area. (Id. at ¶¶ 10-11.) She further alleges that work options are severely limited for disabled inmates, that one accessible entrance to a building containing classrooms is difficult and dangerous for her to use in her wheelchair, and that the sidewalks are in a state of disrepair, resulting in a safety issue for her. (Id. at PageID# 9-10, ¶¶ 12-15.) Thompson states that she tried to address these issues with Unit Counselor Robertson, who threatened that she would be relocated to an assisted living unit. (Id. at PageID# 10, ¶ 16.) Thompson states that she would not have access to eligible work and program options in such a unit and that her physical abilities do not require the high level of assistance such a facility would provide. (Id.)

         In support of their motion seeking dismissal for failure to exhaust, Defendants submit the affidavit of Benjamin Bean, the authorized custodian of grievance records by virtue of his role “as the designee for the Deputy Commissioner of Operations for the review and response for Grievance Appeals that are appealed to the Commissioner.” (Doc. No. 44-1, PageID# 163, ¶¶ 1-2.) Mr. Bean's states that Thompson has filed four grievances since being incarcerated at the Tennessee Prison for Women, none of which was appealed through all three levels of the prison grievance procedure. (Id. at PageID# 164, ¶¶ 10-11.) The records of proceedings on all four grievances are attached to his affidavit.

         II. Analysis

         Under the Prison Litigation Reform Act (PLRA), a prisoner is required to exhaust all available administrative remedies before filing an action in federal district court under 42 U.S.C. § 1983 or any other federal law. 42 U.S.C. § 1997e(a). “There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007). “[T]o properly exhaust administrative remedies prisoners must ‘complete the administrative review process in accordance with the applicable procedural rules' --rules that are defined not by the PLRA, but by the prison grievance process itself.” Id. at 218 (quoting Woodford v. Ngo, 548 U.S. 81, 88 (2006)).

         Both Thompson and the Defendants have submitted the TDOC “Inmate Grievance Procedures” and the corresponding provisions of the TDOC inmate handbook. (Doc. No. 44-2; Doc. No. 51, PageID# 250-78.)[2] In order to exhaust all available remedies under these procedures, a grievant must appeal a denial of or otherwise unsatisfactory response to the initial grievance twice, first to “the grievance committee and Warden” and, if unsatisfied with this “Level II” response, then to “the Deputy Commissioner of Operations/designee” for a “Level III” response that is “final and not subject to appeal.” (Doc. No. 51, PageID# 252.)

         It is undisputed that, of the three TDOC grievances Thompson filed before filing suit in this Court, none was appealed past Level II. Defendants have supported their motion with proof that Thompson declined to appeal grievances 00293603 (Doc. No. 44-3, PageID# 205), 00295027 (Doc. No. 44-4, PageID# 210), and 00297338 (Doc. No. 44-5, PageID# 220). Thomas does not argue otherwise. In her response to the motion to dismiss, Thompson states that:

In its motion to dismiss, the State correctly points out that Petitioner has failed to exhaust her administrative remedies. The motion to . . . dismiss should nevertheless be denied due to the fact that [TDOC] has [not] fundamentally adhered to its own administrative procedures. [TDOC]'s repeated failure to abide by its own procedures for reviewing grievances has rendered Petitioner incapable of exhausting her administrative procedures.

(Doc. No. 51, PageID# 246, ¶ 1.)

         Under the PLRA, a prisoner must exhaust only those administrative remedies that are “available.” 42 U.S.C. § 1997e(a). “Prison authorities cannot immunize themselves from suit by establishing procedures that in practice are not available because they are impossible to comply with or simply do not exist.” King v. McCarty, 781 F.3d 889, 893 (7th Cir. 2015). Thus, if Thompson could show that she failed to exhaust because TDOC's “failure to abide by its ...


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