United States District Court, W.D. Tennessee, Eastern Division
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND
NOTIFYING PLAINTIFF OF APPELLATE FILING FEE
D. TODD UNITED STATES DISTRICT JUDGE.
pro se prisoner Plaintiff, Paul Chastine, filed this
action pursuant to 42 U.S.C. § 1983 in the U.S. District
Court for the Eastern District of Tennessee against Defendant
Mike McCage, alleging that McCage subjected him to excessive
force on October 28, 2015, while Plaintiff was incarcerated
at the Northwest Correctional Complex in Tiptonville,
Tennessee. (ECF No. 2.) After process was served, Defendant
filed a motion to dismiss for lack of venue or, in the
alternative, to transfer the case to this district. (ECF Nos.
17 & 18.) The motion to dismiss also contended that
dismissal was required on the basis that Plaintiff failed to
exhaust his administrative remedies prior to filing this
action, thus depriving the Court of subject matter
jurisdiction. (Id.) On May 19, 2016, U.S. District
Judge Thomas A. Varlan granted Defendant's alternative
request to transfer the case to this district, where venue is
proper. (ECF No. 19.) However, he did not address
Defendant's contention that Plaintiff had failed to
exhaust his administrative remedies. (Id.) Plaintiff
has not, at any time, responded to the motion to dismiss or
attempted to refute Defendant's argument regarding
failure to exhaust.
42 U.S.C. § 1997e(a), “[n]o action shall be
brought with respect to prison conditions under section 1983
of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are
exhausted.” See Jones v. Bock, 549 U.S. 199,
211 (2007) (“There is no question that exhaustion is
mandatory under the PLRA and that unexhausted claims cannot
be brought in court.”); Porter v. Nussle, 534
U.S. 516, 532 (2002) (“Even when the prisoner seeks
relief not available in grievance proceedings, notably money
damages, exhaustion is a prerequisite to suit.”).
However, a prisoner is not required to demonstrate exhaustion
in his complaint. Jones, 549 U.S. at 216. Failure to
exhaust is an affirmative defense on which the defendant has
the burden of proof. Risher v. Lappin, 639 F.3d 236,
240 (6th Cir. 2011); Napier v. Laurel Cnty., Ky.,
636 F.3d 218, 225 (6th Cir. 2011).
1997e(a) requires not merely exhaustion of the available
administrative remedies, but proper exhaustion of
those remedies, meaning that a prisoner must comply with the
institution's “critical procedural rules, ”
such as time limits for filing grievances.Woodford v.
Ngo, 548 U.S. 81 (2006).
The benefits of exhaustion can be realized only if the prison
grievance system is given a fair opportunity to consider the
grievance. The prison grievance system will not have such an
opportunity unless the grievant complies with the
system's critical procedural rules. A prisoner who does
not want to participate in the prison grievance system will
have little incentive to comply with the system's
procedural rules unless noncompliance carries a sanction . .
at 95. See also Jones, 549 U.S. at 218.
inmate exhausts a claim by taking advantage of each step the
prison holds out for resolving the claim internally and by
following the ‘critical procedural rules' of the
prison's grievance process.” Reed-Bey v.
Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010). Thus, an
inmate who does not timely pursue all available levels of the
grievance procedure has not properly exhausted a particular
claim. The Sixth Circuit requires prisoners “to make
‘affirmative efforts to comply with the administrative
procedures, ' and analyzes whether those ‘efforts
to exhaust were sufficient under the
circumstances.'” Risher, 639 F.3d at 240
(quoting Napier, 636 F.3d at 224). “[I]f the
plaintiff contends he was prevented from exhausting his
remedies . . . the defendant [must] present evidence showing
that the plaintiff's ability to exhaust was not
hindered.” Surles v. Andison, 678 F.3d 452,
458 n.10. (6th Cir. 2012).
only reference to any grievance in Plaintiff's pleading
is in response to preprinted questions on the form complaint.
In answer to the question, “Did you present the facts
relating to your Complaint in the prisoner grievance
procedure?” Plaintiff checked “yes.” (ECF
No. 2 at 4.) However, he indicated only that he “place
[sic] grievance in grievance box” and that he
“never received a response.” (Id.)
support of the motion to dismiss, Defendant has offered the
affidavit of Lolie Jones, the Executive Assistant to the TDOC
Deputy Commissioner. (Jones Aff., ECF No. 18-2.) Jones
reviewed Plaintiff's official TDOC grievance log in the
Tennessee Offender Management Information System, or TOMIS.
(Id. ¶¶ 3-4.) TOMIS reflects that
Plaintiff has filed ten grievances since his incarceration
began, but he has exhausted only one, #00299331, which he
filed on March 4, 2016. (Id. ¶¶ 7-8 &
Ex. A.) Although Plaintiff filed a grievance on October 27,
2015, one day before the date of the alleged assault by
McCage, no other grievance was filed until February 12, 2016.
(Id. ¶ 11 & Ex. A.)
contends that Plaintiff has failed to exhaust his
administrative remedy because he has not demonstrated that he
took any additional steps to inquire about the status of the
grievance he claims to have put in the grievance box
regarding the alleged assault. Plaintiff also has not
contended that any prison official prevented him from
exhausting his grievance.
Plaintiff has not demonstrated that he exhausted his
administrative remedy with regard to his claim against the
Defendant, the motion to dismiss is GRANTED. All other
motions are DENIED as moot.
to 28 U.S.C. § 1915(a)(3), the Court must consider
whether an appeal by Plaintiff in this case would be taken in
good faith. The good faith standard is an objective one.
Coppedge v. United States, 369 U.S. 438, 445 (1962).
The test for whether an appeal is taken in good faith is
whether the litigant seeks appellate review of any issue that
is not frivolous. Id. The same considerations that
lead the Court to dismiss this case for lack of exhaustion
also compel the conclusion that an appeal would not be taken
in good faith.
it is CERTIFIED, pursuant to 28 U.S.C. § 1915(a)(3),
that any appeal in this matter by Plaintiff would not be
taken in good faith.
Court must also address the assessment of the $505 appellate
filing fee if Plaintiff nevertheless appeals the dismissal of
this case. A certification that an appeal is not taken in
good faith does not affect an indigent prisoner
plaintiff's ability to take advantage of the installment
procedures contained in § 1915(b). See McGore v.
Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997),
partially overruled on other grounds by LaFountain v.
Harry, 716 F.3d 944, 951 (6th Cir. 2013).
McGore sets out specific procedures for implementing
the PLRA, 28 U.S.C. § 1915(a)-(b). Therefore, the
Plaintiff is instructed that if he wishes to take advantage
of the installment procedures for paying the appellate filing
fee, he must comply with the procedures set out in