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Thompson v. Robertson

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

March 20, 2017

COUNSELOR ROBERTSON et al., Defendants


          ALETA A. TRAUGER United States District Judge.

         Before the court is the plaintiff's Objection (Doc. No. 56) to the Report and Recommendation (“R&R”) filed by Magistrate Judge Newbern (Doc. No. 47), recommending that the defendants' Motion to Dismiss for Failure to Exhaust Grievance Procedures (Doc. No. 43) be granted and that the entire action be dismissed without prejudice.

         Any party may, within fourteen days after being served with a magistrate judge's recommendation as to a dispositive matter, “serve and file specific written objections to the proposed findings and recommendations.” Fed.R.Civ.P. 72(b)(2). The district court must review de novo any portion of the report and recommendation to which objections are properly lodged. Fed.R.Civ.P. 72(b)(3); 28 U.S.C. § 636(b)(1)(B) & (C). An objection is properly made if it is sufficiently specific to “enable[] the district judge to focus attention on those issues- factual and legal-that are at the heart of the parties' dispute.” Thomas v. Arn, 474 U.S. 140, 147 (1985). In conducting its review, the district court “may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3).

         The court has reviewed the plaintiff's objections de novo and, for the reasons set forth herein, will overrule the Objection and accept the magistrate judge's recommendation that this action be dismissed without prejudice for failure to exhaust.


         The plaintiff is a prisoner in the custody of the Tennessee Department of Correction (“TDOC”) and confined at the Tennessee Prison for Women (“TPFW”). She alleges generally that she is an amputee confined to a wheelchair and that the facilities at TPFW are not handicap accessible, in violation of her federal rights. She seeks declaratory, injunctive and monetary relief against Vickie Freeman, TPW Warden; seven members of the Warden's staff; and Derrick Schofield, TDOC Commissioner. The court conducted an initial review of the Complaint and determined that it stated colorable claims under 42 U.S.C. § 1983 for violations of the plaintiff's rights under the Eighth Amendment.

         On April 8, 2016, the defendants filed their Motion to Dismiss (Doc. No. 43) along with a supporting Memorandum of Law (Doc. No. 44). In this motion, the defendants argue that they are entitled to judgment as a matter of law on the basis that the plaintiff failed to exhaust her administrative remedies prior to filing suit in federal court, because she did not appeal any of her grievances to the third and final level authorized by TDOC's Grievance Policy. The plaintiff filed a Response to Motion to Dismiss (Doc. No. 51), acknowledging that she did not fully exhaust administrative remedies by filing administrative appeals. She argues, however, that the defendants have not adhered to TDOC's own administrative procedures, thus rendering the plaintiff “incapable of exhausting her administrative remedies.” (Doc. No. 51, at 1.) She also points out that, pursuant to TDOC's grievance policy, “If the Warden agrees to the grievant's requested solution, the grievant shall not have the right to appeal to Level III.” (Id. at 2 (quoting TDOC Policy 501.01(VI)(c)(2)).)

         The magistrate judge recommends that the Motion to Dismiss be granted on the basis that, in order to exhaust all administrative remedies under the TDOC Grievance Policy, a grievant must appeal a denial 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. 53, at 4 (quoting TDOC Grievance Policy 501.01 ¶¶ VI(C)(2) & (3),, Doc. No. 44-2, at 3).) The magistrate judge found that the plaintiff had not exhausted her administrative remedies by appealing and had not provided a valid basis for waiver of the exhaustion requirement.

         In her Objection, the plaintiff points out that the Prison Litigation Reform Act only requires exhaustion of “such administrative remedies as are available.” (Doc. No. 56, at 1 (quoting 42 U.S.C. § 1997e(a)).) She argues that she actually appealed more than one grievance to Level II, was granted relief, and the Warden approved the recommended relief. Under TDOC Policy 501.01 ¶ VI(C)(2), if the Warden approves a suggested remedy, no Level III appeal is permitted. That is, no appeal was “available” to the plaintiff, for purposes of 42 U.S.C. § 1997e(2). She also argues that recurring issues cannot be addressed through TDOC's Grievance Policy, which states: “Inmates shall not be permitted to submit more than one grievance arising out of the same or similar incident.” (Doc. No. 56, at 1 (quoting TDOC Policy 501.01 ¶ VI(J)(1)).)


         A. Allegations in the Complaint

         The plaintiff is an amputee who is confined to a wheelchair. She has been incarcerated at TPFW since July 15, 2015. (Doc. No. 1 § IV.) She alleges that she has struggled to address “handicap accessibility” at the prison since her arrival. (Id. § IV(7).) She alleges that she was first assigned to a cell that did not provide any disability accommodations. (Id. §§ IV(7)-(8).) 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. § IV(9).)

         She experienced other handicap-accessibility issues 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 in front of the entrance to the prison's maximum security area. (Id. ¶¶ IV(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. ¶¶ IV(12)-(15).) The plaintiff 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. ¶ IV(16).) She alleges 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.)

         The plaintiff seeks a declaration that the “acts and omissions described herein violated [her] rights under the Constitution and laws of the United States.” (Compl. at 10.) She also seeks injunctive ...

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