United States District Court, E.D. Michigan, Southern Division
TO GRANT DEFENDANTS' MOTION (Dkt. 62) REPORT AND RECOMMENDATION
MICHAEL HLUCHANIUK, Magistrate Judge.
I. Procedural History
This is a prisoner civil rights action filed on August 13, 2012. (Dkt. 1). The case was referred to Magistrate Judge Randon on August 21, 2012, for all pretrial purposes. (Dkt. 6). Plaintiff Janine Weathington filed an amended complaint on May 9, 2014, alleging that she and other female inmates at the Wayne County Jail were subjected to unreasonable, unlawful and unconstitutional strip searches in violation of the Fourth Amendment. (Dkt. 53 at ¶ 34-41). Plaintiff also raises two Monell challenges against Wayne County and the Wayne County Sheriff for unconstitutional policies, customs and practices, and for inadequate training and/or supervision of its agents and employees relating to the manner in which the strip searches were allegedly conducted. ( Id. at ¶¶ 42-52).
On July 10, 2014, Defendants County of Wayne, Benny N. Napoleon, Jeriel Heard, Corporal Darlene Oglesby, Corporal Arthur Elandt, Corporal Cyrs, and Officer Graham (collectively "defendants") moved for summary judgment on the amended complaint on the basis that plaintiff failed to file any grievances with the Wayne County Jail concerning the alleged activity, and thus failed to exhaust her administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e. (Dkt. 62). Plaintiff responded on July 31, 2014, arguing that (1) Wayne County's policies define plaintiff's claims as "nongrievable" and thus not subject to exhaustion under the PLRA, and (2) plaintiff nonetheless complied with Wayne County's grievance policy by filing four separate grievances regarding these activities at the Wayne County Jail. (Dkt. 68, 68-1, 69). Defendants filed their reply brief on August 18, 2014. (Dkt. 71).
Due to the differences in the factual claims between the parties an evidentiary hearing was held on December 3, 2014, regarding the issues associated with the exhaustion question. (Dkt. 85).
For the reasons that follow, the undersigned RECOMMENDS that defendants' motion (Dkt. 62), construed as an unenumerated Fed.R.Civ.P. 12(b) motion to dismiss, be GRANTED.
Because plaintiff has filed an amended motion to certify the class (Dkt. 45), and has identified other potential class members, the undersigned also RECOMMENDS that plaintiff be given 30 days from the date the District Court addresses this report and recommendation to amend the complaint and substitute a new class representative. If this cannot be accomplished, the amended complaint will be DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies.
II. Factual Background
Plaintiff alleges that during the time of her incarceration in the Wayne County jail, she was subjected to unreasonable, unlawful and unconstitutional strip searches. (Dkt. 53, ¶¶ 15-16). Plaintiff specifically alleges that female inmates were subjected to forced strip searches in the view of male guards and officers as well as dozens of other inmates. ( Id. at ¶¶ 17-18). Plaintiff claims that she was subjected to "at least three" unreasonable strip searches between November 2011 and April 2012. ( Id. at ¶ 25). Plaintiff alleges that she filed administrative grievances regarding the strip searches, thus exhausting her administrative remedies. ( Id. at ¶¶ 27, 30). Plaintiff claims that defendants violated her Fourth Amendment rights. ( Id. at ¶¶ 5-9). She also raises two Monell claims against Wayne County and the Wayne County Sheriff. ( Id. )
Defendants' motion focuses solely on the issue of exhaustion, namely that plaintiff did not exhaust her administrative remedies and therefore her claims should be dismissed. However, in reply, defendants contend that the grievances that plaintiff submitted in response to defendants' motion were never actually submitted to the Wayne County Jail during the term of her incarceration, rather they were only submitted for the purpose of this lawsuit. (Dkt. 71, Def.'s Reply, at 2). Moreover, defendants contend that plaintiff's argument that her claims are "non-grievable" and thus not subject to the exhaustion requirements of the PLRA is unfounded for two reasons. First, defendants assert that plaintiff is not grieving the "content" of any Wayne County Jail "Administrative Rules, Policy Directives, Operating Procedures, " as contemplated by § 7.1(B)(2)(b), and that the Wayne County Jail grievance policy expressly permits inmates to grieve both "policy/procedure violations" and "unsatisfactory conditions of confinement." And, second, that plaintiff is not excused from filing a grievance under § 7.1(B)(2)(c), which requires that an inmate grieve something that is redressable individually (as opposed to grieving on behalf of other inmates). Plaintiff here complains of how she was treated individually and thus is not excused from complying with the grievance process.
During the evidentiary hearing on December 3, 2014, two witnesses were called to testify. The two witnesses were the plaintiff, Janine Weathington, and second, Charles Pappas, who was the director of internal compliance for the Wayne County Sheriff's Department. (Dkt. 85, p. 128). Mr. Pappas served in this capacity between June of 2012 and September of 2014, and was in charge of the Jail inmate grievance system. ( Id. )
Ms. Weathington testified that she was currently housed with the Michigan Department of Corrections (MDOC) where she is serving a sentence for "multiple" criminal convictions and that she came to the MDOC on March 15, 2012, after transferring there from the Wayne County Jail. (Dkt. 85, p. 38). She was initially housed at the Division I unit of the Wayne County Jail where she filed the first of the four grievances relating to the strip search practices of the Jail. She transferred to the Division III unit of the Wayne County Jail, a completely different location than Divisions I and II, in November of 2011 where she filed three of the four grievances relating to strip search practices. (Dkt. 85, p. 106).
Plaintiff presented copies of three of the four grievances she stated she had filed. The copies, according to her testimony, were handwritten duplicates of what she actually filed. (Dkt. 85, p. 41). She stated she could not make facsimile copies of the grievances because when she went to the law library the copy machine was not working and therefore she was forced to write out a duplicate copy. (Dkt. 85, p. 41). Plaintiff indicated that she never was asked any questions about these grievances by Jail staff and never received any response from the Jail. The copies she presented in court were kept by her while at the Jail and taken with her to the MDOC when she was transferred there in March of 2012. (Dkt. 85, p. 38).
Mr. Pappas testified that he was familiar with the records maintained by the Wayne County Jail, specifically the records of grievances filed, and that he had conducted a search of those records and could not find a record showing that plaintiff had filed a grievance regarding strip searches during her stay at the Jail between November of 2011 and March of 2012. (Dkt. 85, pp. 129-30). His search consisted of reviewing a spreadsheet log and manually reviewing thousands of paper documents. ( Id. ) He further stated that there were no practical limits on what a grievance could be based on and he noted that the policies on grievances differed from Division I/II and Division III of the Wayne County Jail. (Dkt. 85, p. 133). The grievance policy for Divison I/II did contain language that stated that "[i]ssues, which affect the entire population or a significant number of inmates" are not grievable but Mr. Pappas testified that such language would not have resulted in a summary rejection of a grievance like the one plaintiff stated she filed on or about November 22, 2011, and he also stated he had never seen a grievance rejected under this provision of the grievance policy for Division I/II. (Dkt. 85, p. 145).
Mr. Pappas also testified that the Wayne County Jail keeps track of prisoner movement within the Jail and the records relating to plaintiff for the time she was an inmate between November of 2011 and March of 2012 show that she did not go the law library in either location. (Dkt. 85, p. 164). According to Mr. Pappas, plaintiff could not have taken anything other than the clothes on her back to the MDOC when she left the Wayne County Jail on March 15, 2012. Id. This limitation is imposed by the MDOC and would have prevented plaintiff from taking what she said were duplicate copies of the grievances as she testified. Id. Mr. Pappas concluded his testimony by stating that he did not believe that plaintiff had filed any grievances at the Wayne County Jail during late 2011 and early 2012. (Dkt. 85, p. 168).
III. Legal Analysis
A. Legal Standard
Title 42 U.S.C. § 1997e(a) provides that "[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." Section 1997e(a)'s "exhaustion requirement applies to all prisoners seeking redress for prison circumstances or occurrences." Porter v. Nussle, 534 U.S. 516, 520 (2002). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter, 534 U.S. at 532. In Jones v. Bock, 549 U.S. 199 (2007), the Supreme Court held that "failure to exhaust is an affirmative defense under the PLRA, " and "inmates are not required to specially plead or demonstrate exhaustion in their complaints." Jones, 549 U.S. at 216. "Compliance with prison grievance procedures... is all that is required by the PLRA to properly exhaust.'" Jones, 549 U.S. at 218. "Congress has provided in § 1997e(a) that an inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues." Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001). "[P]roper exhaustion of administrative remedies is necessary." Woodford v. Ngo, 548 U.S. 81, 84 (2006); Brown v. Toombs, 139 F.3d 1102 (6th Cir.), cert. denied, 525 U.S. 833, 119 S.Ct. 88, 142 L.Ed.2d 69 (1998) (No federal action shall be brought until such administrative remedies as are available are exhausted). In other words, a prisoner may not exhaust administrative remedies during the pendency of the federal lawsuit. Larkins v. Wilkinson, 1998 WL 898870, at *2 (6th Cir. Dec. 7, 1998).
In Jones v. Bock , the Supreme Court also held that the burden rests on the defendant to show that a plaintiff failed to exhaust when asserting exhaustion as an affirmative defense. Id. Accordingly, exhaustion is satisfied if plaintiff complied with the applicable grievance procedures and defendants bear the burden of showing otherwise. See Kramer v. Wilkinson, 226 Fed.Appx. 461, 462 (6th Cir. 2007) (a prisoner-plaintiff "does not bear the burden of specially pleading and proving exhaustion; rather, this affirmative defense may serve as a basis for dismissal only if raised and proven by the defendants.").
Here, defendants have moved for summary judgment on the issue of whether plaintiff failed to exhaust her administrative remedies under the PLRA. (Dkt. 62). However, as previously stated by a court in this district, summary judgment seems an inappropriate vehicle for adjudication because there is no determination on the merits of the case, and no "judgment" is entered. See Neal v. Raddatz, No. 09-13169, 2012 WL 488827, at *2 (E.D. Mich. Jan. 12, 2012). Instead, a number of courts have characterized a request to dismiss for failure to exhaust administrative remedies as "subject to an unenumerated Rule 12(b) motion rather than a motion for summary judgment." Id. (quoting Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003); see also Johnson v. Gregoire, 2008 WL 5156428, *3 (W.D. Wash. 2008), citing Ritza v. International Longshoremen's and Warehousemen's Union, 837 F.2d 365, 369 (9th Cir. 1988) ("finding that while no defense described in 12(b)(1) through (7) encompasses failure to exhaust, federal courts traditionally have entertained certain pre-answer motions not expressly provided for by rule, and authority to ...