United States District Court, E.D. Tennessee, Chattanooga
BRIAN W. LOWE, Plaintiff,
TENNESSEE DEPARTMENT OF CORRECTION, DERRICK SCHOFIELD, JASON WOODALF, DOUG COOK, DAVID FERGUSON, STEVE BICKFORD, and PHIL ASBURY, Defendants
L. COLLIER UNITED STATES DISTRICT JUDGE
civil matter is before the Court on the motion to dismiss by
defendant Steve Bickford (“Defendant”) [Doc. 18].
Plaintiff has not filed a response in opposition, and the
time for doing so has now passed. E.D. Tenn. L.R. 7.1, 7.2.
For the reasons that follow, the Court will grant
Defendant's motion to dismiss.
is an inmate at Bledsoe County Correctional Complex. On
November 23, 2015, Plaintiff filed a complaint pursuant to 42
U.S.C. § 1983 against Defendant, alleging Defendant
violated his Eighth Amendment rights [Doc. 19]. On June 1,
2015, Defendant instructed Plaintiff to cut wooden slats
using a table saw, despite Plaintiff pointing out the lack of
a safety guard [Id.]. While cutting the wooden
slats, Plaintiff injured his left thumb [Id.]. He
was treated immediately for his injury [Id.].
Plaintiff filed his first grievance on August 4, 2015
[Id.]. Plaintiff alleges that Defendant knew that
two inmates had injured themselves using the same table saw
without a safety guard in the four months preceding
Plaintiff's injury, but directed Plaintiff to use the
table saw anyway [Doc. 2].
Rule of Civil Procedure 8(a)(2) sets out a liberal pleading
standard. Smith v. City of Salem, 378 F.3d 566, 576
n.1 (6th Cir. 2004). It requires only “‘a short
and plain statement of the claim showing that the pleader is
entitled to relief, ' in order to ‘give the
[opposing party] fair notice of what the . . . claim is and
the grounds upon which it rests, '” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). Detailed
factual allegations are not required, but a party's
“obligation to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions.” Twombly, 550 U.S. at 555.
“[A] formulaic recitation of the elements of a cause of
action will not do”-nor will “‘naked
assertion[s]' devoid of ‘further factual
enhancement, '” or “an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555, 557).
faced with a Rule 12(b)(6) motion, courts must construe the
complaint in the light most favorable to the plaintiff,
accept all factual allegations as true, draw all reasonable
inferences in favor of the plaintiff, and determine whether
the complaint contains “enough facts to state a claim
to relief that is plausible on its face.”
Twombly, 550 U.S. at 570; Directv, Inc. v.
Treesh, 487 F.3d 471, 476 (6th Cir. 2007). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
“Determining whether a complaint states a plausible
claim for relief will [ultimately] . . . be a
context-specific task that requires [this Court] to draw on
its judicial experience and common sense.” Id.
litigants “are held to less stringent [pleading]
standards than . . . lawyers in the sense that a pro se
complaint will be liberally construed in determining whether
it fails to state a claim upon which relief could be
granted.” Jourdan v. Jabe, 951 F.2d 108, 110
(6th Cir. 1991); see also Haines v. Kerner, 404 U.S.
519, 520 (1972). Even still, the “lenient treatment
generally accorded to pro se litigants has limits.”
Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir.
1996). “Neither [this] Court nor other courts . . .
have been willing to abrogate basic pleading essentials in
pro se suits.” Wells v. Brown, 891 F.2d 591,
594 (6th Cir. 1989).
FAILURE TO EXHAUST
motion to dismiss, Defendant asserts that Plaintiff
“failed to properly exhaust his administrative remedies
pursuant to the Prison Litigation Reform Act, 42 U.S.C.
§ 1997(e)” [Doc. 18]. The Prison Litigation Reform
Act (“PLRA”), 42 U.S.C. § 1997(e)(a),
provides: “No action shall be brought with respect to
prison conditions under [§] 1983 of this title . . . by
a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as
are available are exhausted.” This exhaustion
requirement is one of “proper exhaustion.”
Woodford v. Ngo, 548 U.S. 81, 93 (2006). This means
the prisoner plaintiff must have completed “the
administrative review process in accordance with the
applicable procedural rules, including deadlines, as a
precondition to bringing suit in federal court.”
Id. at 88. In addition, a prisoner must exhaust the
grievance process to all levels of appeal before filing his
complaint. Freeman v. Francis, 196 F.3d 641, 645
(6th Cir. 1999). Failure to follow the correctional
facility's grievance procedures, i.e., exhaust
administrative remedies, is fatal. See Williams
v. Moore, 34 F. App'x 475, 477 (6th Cir. 2002);
Black v. Tarver, 21 F. App'x 285, 286 (6th Cir.
raises failure to exhaust as an affirmative defense [Doc.
13]. Specifically, Defendant notes Plaintiff filed a
grievance asserting that, on June 1, 2015, he was injured
while using a table saw due to the absence of a blade guard
[Doc. 19]. Defendant maintains that “[p]er TDOC policy,
Plaintiff had seven calendar days to properly file a
grievance” [Id.] [citing TDOC policy
501.01(VI)(C)(1) (“Grievances must be filed . . .
within seven calendar days of the occurrence or the most
recent occurrences giving rise to the
grievance.”)]. Defendant argues Plaintiff did not file
his grievance until sixty-four days after he was allegedly
injured. Plaintiff's grievance was denied as
“inappropriate per policy as it was not filed within
the (seven) day time limit.” [Id.].
notes that on June 16, 2015, Plaintiff's sister attempted
to obtain copies of the incident report, but was denied on
June 23, 2015 [Id. at 2]. Defendant argues that,
insofar as Plaintiff asserts that the seven-day limitation
began to run after the warden denied his sister's
request, Plaintiff still filed his grievance forty-two days
after her request was denied [Id. at 3].
review, the Court agrees. Because Plaintiff failed to submit
a timely administrative grievance regarding his Eighth
Amendment claim against Defendant outlined in the § 1983
complaint, this action is subject to dismissal.
FAILURE TO RESPOND IN ...