The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS GRANTING DEFENDANT‟S MOTION TO DISMISS (Doc. 23)
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is Defendant‟s motion to dismiss filed March 5, 2012. (Doc. 23). Defendant argues that Plaintiff failed to exhaust his administrative remedies prior to filing this action. Plaintiff has filed an Opposition in which he asserts he submitted a grievance related to the incident at issue within five days. (Doc. 31). Despite this, inexplicably, Defendant‟s Reply asserts that Plaintiff failed to directly dispute the exhaustion argument and reiterates that Plaintiff failed to exhaust the available administrative remedies. (Doc. 33). For the reasons set forth below, the Court recommends the motion be GRANTED.
This action is proceeding on Plaintiff‟s amended complaint. (Doc. 7.) The Court screened the amended complaint and found that it stated a cognizable claim against Defendant Atkinson for excessive force. (Doc. 10.) Plaintiff‟s amended complaint related to an incident that occurred on June 14, 2011 in which Plaintiff‟s cellmate, inmate Harrison, refused to return his food tray and 2 proceeded to cover the cell window with paper in protest for not receiving his vegetarian food tray. 3
(Doc. 7 at 3-4). When Harrison failed to remove the paper from the window as ordered, Defendant 4
Atkinson sprayed pepper spray through the open tray slot in the cell door. (Id.) Atkinson entered the 5 cell and sprayed Plaintiff with the pepper spray as well. (Id.) Plaintiff‟s amended complaint 6 acknowledges that the grievance process had not been complete at the time of the filing of the 7 amended complaint. (Id. at 2). 8
On March 5, 2012, Defendant filed the instant motion to dismiss on
grounds that Plaintiff
failed to exhaust all available administrative remedies prior to
filing suit. (Doc. 23). Specifically, Defendant asserts that Plaintiff
had the opportunity to file an inmate grievance regarding the June 14,
2011 incident, but failed to do so until October 2011. Plaintiff‟s
October 2011 grievance was cancelled as untimely.
Plaintiff claims that he filed a grievance related to the June 14, 2011 incident on June 19, 2011. (Doc. 31 at 4) Plaintiff asserts that he gave the complaint to Officer Martinez. Id. When by June 28, 2011, Plaintiff had not received any acknowledgement; he submitted an inmate request to the Litigation Coordinator. Id. Plaintiff inquired whether his grievance had been received and expressed concerns that staff may be "messing" with his appeals. (Doc. 31 at 11) He requests a meeting where he could submit the appeal personally to the Litigation Coordinator. Id.
On July 4, 2011, Plaintiff wrote to the Office of Internal Affairs and complained about the fact that he had submitted a grievance related to the June 14, 2011 event but had not received a response. (Doc. 31 at 12) He requested an investigation into his grievance submission and the underlying events. Id.
Once again, on July 10, 2012, Plaintiff submitted an inmate request related to his grievance that he filed on June 19, 2011 related to the June 14, 2011 event. (Doc. 31 at 13) In response, on July 14, 2012, the Litigation Coordinator responded and reported that no such appeal had been received. Id. In response, on July 17, 2011, Plaintiff requested a supervisor review the situation and reiterated his desire to provide a copy of the grievance in person given that the prior one never arrived at the appeals office. Id. The supervisor responded on July 24, 2011 and reported again that the appeals office had 2 not received Plaintiff‟s grievance. Id.
The same day, Plaintiff submitted an inmate request to which he reported that he attached a copy of his original grievance. (Doc. 31 at 14) Again on July 24, 2011, the appeals office responded 5 and reported that there was no copy of the grievance attached. Id. at 15. Plaintiff asserts that he 6 learned on August 2, 2011 from G. Hernandez that his inmate request was received but that no appeal 7 was attached. (Doc. 31 at 5). Hernandez told him also that the appeals office did receive an appeal 8 from him on July 26, 2011 which was screened out on July 28, 2011 and returned to him with 9 instructions on how to proceed.*fn1 Id.; Doc. 23-6 at 2; Doc. 23-7 at 2. The instructions required Plaintiff to remove extraneous pages and to attach the incident report outlining what occurred. (Doc. 23-3 at 10)
Plaintiff claims that he never received these responses so on August 4, 2011, he again requested a supervisor review and an in-person interview because of his concern that "I‟ve turned in 2 complaints which both has come up missing." (Doc. 31 at 14) On August 9, 2011, the supervisor responded and reiterated that no appeal had been received and "suggest you re-write and re-submit." Id.
On October 3, 2011, Plaintiff filed an appeal related to the June 14, 2011 event. (Doc. 31 at 25) On October 6, 2011, at the first level of review, Plaintiff‟s appeal was rejected because it was not signed or dated and because it was not timely. Id. at 26. On October 12, 2011, Plaintiff re-submitted the grievance and it was reviewed at the second level. (Doc. 23-2 at 5) It was cancelled because ...