Freeman v. Francis

• Decision Date: 12 August 1999
• Docket Number: No. 98-4288,98-4288
• Citation: 196 F.3d 641
• Parties: (6th Cir. 1999) Dwight E. Freeman, Plaintiff-Appellant, v. Warden Francis; Corrections Officer Shoemaker; Nurse Kent, Defendants-Appellees. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 641

196 F.3d 641 (6th Cir. 1999)

Dwight E. Freeman, Plaintiff-Appellant, v. Warden Francis; Corrections Officer Shoemaker; Nurse Kent, Defendants-Appellees.

No. 98-4288

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: August 12, 1999

Decided and Filed: October 27, 1999

Appeal from the United States District Court for the Southern District of Ohio at Columbus, No. 97-01195--George C. Smith, District Judge.

Lisa T. Meeks, NEWMAN & MEEKS, Cincinnati, Ohio, for Appellant.

Todd R. Marti, OFFICE OF THE ATTORNEY GENERAL, CORRECTIONS LITIGATION SECTION, Columbus, Ohio, for Appellees.

Before: MERRITT, KENNEDY, and DAUGHTREY, Circuit Judges.

OPINION

MERRITT, Circuit Judge.

Plaintiff Dwight E. Freeman, an inmate at Correctional Medical Center, brought an action pursuant to 42 U.S.C. § 1983 against defendants, all employees of the Medical Center, in their individual capacities. The district court dismissed the complaint for failure to exhaust administrative remedies in accordance with the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). ¹ Plaintiff contends that he is not required to exhaust the prison's administrative remedies because (1) his excessive force claim does not involve a "prison condition" within the meaning of § 1997e(a); (2) he seeks only monetary damages, which are not provided by the Ohio prison grievance procedures; (3) an investigation into the matter by the Ohio State Highway Patrol satisfies the exhaustion requirement and (4) he did in fact exhaust his administrative remedies.

Plaintiff alleges that on July 26, 1997, a corrections officer and a nurse were making medication rounds. Plaintiff, who was recovering from nasal surgery, asked the nurse for some gauze for his nose. The corrections officer told him to "shut up" and assaulted him. The nurse did nothing to stop the assault or call for help. Plaintiff claims that he suffered a separated shoulder from the incident.

Plaintiff first contends that because he seeks solely monetary damages for constitutional deprivations and money damages are not available through the Ohio prison grievance process, he should not be required to exhaust administrative remedies. We have previously held that so long as the prison system has an administrative process that will review a prisoner's complaint even when the prisoner seeks monetary damages, the prisoner must exhaust his prison remedies. Wyatt v. Leonard, 193 F.3d 876 (6th Cir. Oct.6, 1999) (state prisoner seeking monetary damages must exhaust); Lavista v. Beeler, 195 F.3d 254, 256-57 (6th Cir. filed Oct. 26, 1999) (federal inmate seeking monetary, injunctive and declaratory relief must exhaust). As we explained, although it may make sense to excuse exhaustion of the prisoner's complaint where the prison system has a flat rule declining jurisdiction over such cases, it does not make sense to excuse the failure to exhaust when the prison system will hear the case and attempt to correct legitimate complaints, even though it will not pay damages.

Plaintiff then argues that the language in the statute, "no action shall be brought with respect to prison conditions," does not apply to assaults or excessive force claims on prisoners by prison officers. Neither the Supreme Court nor any circuit court has directly addressed this issue, although we note that at least three circuit courts, including our own, have held, without discussing the precise issue raised by plaintiff herein, that claims of excessive force must be exhausted. Wendell v. Asher, 162 F.3d 887 (5th Cir.1998); Brown v. Toombs, 139 F.3d 1102 (6th Cir.), cert. denied, 119 S. Ct. 88 (1998); Garrett v. Hawk, 127 F.3d 1263 (10th Cir. 1997); see also White v. McGinnis, 131 F.3d 593 (6th Cir. 1997) (exhaustion required where the prisoner brought a claim of retaliation). The district courts that have addressed the issue are divided on whether exhaustion is required. Compare Johnson v. Garraghty, 57 F.Supp.2d 321, 325-26 (E.D. Va. July28, 1999); Beeson v. Fishkill Correctional Facility, 28 F. Supp. 2d 884, 888-92 (S.D.N.Y. 1998); Moore v. Smith, 18 F. Supp. 2d 1360, 1363 (N.D. Ga. 1998); Morgan v. Arizona Dep't of Corrections, 976 F. Supp. 892, 895-96 (D. Az. 1997) (exhaustion required) with Baskerville v. Goord, No. 97CIV. 6413, 1998 WL 292421 at *3 (S.D.N.Y. Nov. 5, 1998); White v. Fauver, 19 F. Supp. 2d 305, 313-15 (D.N.J. 1998) (exhaustion not required).

The phrase "action . . . with respect to prison conditions" is not defined in § 1997e. Because the question is one of statutory construction, we must first look to the plain language of the statute. Defendants argue that the term "prison conditions" as used in 18 U.S.C. § 3626(g)(2),² which was amended as part of the same legislation as §1997e, does include claims such as excessive force because it expressly includes "effects of actions by government officials on the lives of confined persons" as well as "conditions of confinement" in defining "prison conditions." Defendants argue that Congress intended those additional words to include an act such as excessive force by a prison guard. It is generally recognized that when Congress uses the same language in two different places in the same statute, the words are usually read to mean the same thing in both places. Commissioner v. Lundy, 516 U.S. 235, 250 (1996); Gustafson v. Alloyd Co., 513 U.S. 561 (1995).

Moreover, reading the term "prison conditions" to include claims of excessive force finds support in the purpose and legislative history of the Act. The Act was passed to reduce frivolous prisoner lawsuits and to reduce the intervention of federal courts into the management of the nation's prison systems. A broad exhaustion requirement that includes excessive force claims effectuates this purpose and maximizes the benefits of requiring prisoners to use prison grievance procedures before coming to federal court. Prisons need to know about and address claims of excessive force as they would any other claim concerning prison life so that steps may be taken to stop problems immediately if they exist.

A Supreme Court case decided before passage of the Reform Act holds that the statutory language "prisoner petitions challenging conditions of confinement," includes both ongoing practices and specific acts of misconduct like those alleged here by plaintiff. McCarthy v. Bronson, 500 U.S. 136, 139-43 (1991) (language in the Magistrate's Act regarding referral of cases to magistrate judge included isolated episodes of misconduct by prison officials, including assault, as well as ongoing misconduct). We therefore agree with those courts that have held that the term "prison conditions" as used in § 1997e includes claims of excessive force and hold that the scope of § 1997e(a)'s exhaustion requirement is determined by the definition of a "civil action with respect to prison conditions" as set forth in § 3626(g)(2).

Plaintiff's final argument contends that he exhausted available administrative remedies. First, he argues that an investigation by the prison Use of Force Committee and the Ohio State Highway Patrol into the alleged assault satisfies §1997e(a) because the statute does not specify that exhaustion must be through the prison's grievance procedure. However, as pointed out by plaintiff in his brief, the procedures for filing a "use of force" report are usually employee-initiated, not prisoner-initiated. Ohio Admin. Code §§ 5120-9-02 (A), (B). Here, the guard responsible for the attack did not file a "use of force" report and the investigation by the Highway Patrol was initiated some other way. ³ This demonstrates the importance of using the prison grievance process in order to alert prison officials to problems. In any event, the exhaustion requirement in § 1997e(a) is directed at exhausting the prisoner's administrative remedies in the corrections system, and investigation by another agency does not satisfy the requirement of the statute.

Plaintiff then argues that he attempted to exhaust his administrative remedies through the prison's grievance procedures. ⁴ Plaintiff's claim arose on July 26 1997, well after passage of the Prison Litigation Reform Act. This is not a case where the event giving rise to the claim occurred before passage of the Act, thereby raising questions about whether it is fair to require the prisoner to know that administrative remedies must be exhausted before filing a complaint in federal court. According to Plaintiff's own chronology of events, on July 27, 1997, the day after the assault, Plaintiff submitted an Informal Complaint Resolution Form to the Captain's office concerning the assault. He sent another informal grievance to a nurse notifying her that he had been assaulted. On Friday, August 1, 1997, apparently without acknowledgment from prison officials of his informal complaints, he filed a formal grievance with the Institutional Inspector as required by Ohio Admin. Code § 5120-9-31(F). On August 17, before the time for the Institutional Inspector to respond had expired, plaintiff appealed to the Chief Inspector. Then on August 28, 1997, before...