United States District Court, M.D. Tennessee, Nashville Division
HONORABLE ALETA A. TRAUGER DISTRICT JUDGE.
REPORT AND RECOMMENDATION
ALISTAIR E. NEWBERN United States Magistrate Judge.
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
is an amputee who is confined to a wheelchair. She was
incarcerated at the Sullivan County Jail 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.)
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.
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.
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
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.) 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.)
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.)
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 ...