461 F.3d 763 (6th Cir. 2006), 03-6559, Owens v. Keeling

Docket Nº:03-6559.
Citation:461 F.3d 763
Party Name:Orbain OWENS, Plaintiff-Appellant, v. George KEELING et al., Defendants-Appellees.
Case Date:August 29, 2006
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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461 F.3d 763 (6th Cir. 2006)

Orbain OWENS, Plaintiff-Appellant,


George KEELING et al., Defendants-Appellees.

No. 03-6559.

United States Court of Appeals, Sixth Circuit.

Aug. 29, 2006

Argued: June 8, 2006.

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[Copyrighted Material Omitted]

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Mary A. Hale, Burch, Porter & Johnson, Memphis, Tennessee, for Appellant.

Mark A. Hudson, Office of the Attorney General, Nashville, Tennessee, for Appellees.


Mary A. Hale, Jennifer Shorb Hagerman, Burch, Porter & Johnson, Memphis, Tennessee, for Appellant.

Mark A. Hudson, Office of the Attorney General, Nashville, Tennessee, for Appellees.

Before: MOORE, COLE, and CLAY, Circuit Judges.



Plaintiff-Appellant Orbain Owens filed a complaint pursuant to 42 U.S.C. § 1983 alleging that various officials employed by the Tennessee Department of Correction ("TDOC"), Defendants-Appellees George Keeling, Charles Szostecki, Joel Leegon, Jane Doe Weston, John Doe Sarago, and Charles Traughber, and Defendant-Appellee Tennessee Board of Probation and Parole ("TBOPP") violated his rights to free speech, due process, and equal protection of the laws, as well as the right to be free

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from cruel and unusual punishment under the U.S. Constitution. U.S. CONST. amends. I, VIII, XIV, § 1. The district court dismissed his complaint for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), and denied Owens's application to proceed as a pauper on appeal. Owens appealed both aspects of the judgment and the imposition of a second filing fee after his first complaint was dismissed for failure to exhaust. Because the district court erroneously considered the prison's grievance procedure an "available" remedy for Owens's classification-related complaint under the PLRA, 42 U.S.C. § 1997e(a), and failed to consider submissions showing that Owens exhausted the available remedy for classification-related complaints, we REVERSE the dismissal of Owens's complaint. We also HOLD that a second filing fee should not be assessed to a prisoner whose initial complaint was dismissed without prejudice for failure to exhaust. We GRANT Owens in forma pauperis status on appeal.


In 2002, Owens was imprisoned in Nashville, Tennessee, at the Middle Tennessee Correctional Complex Annex ("MTCX"). J.A. at 12 (Compl. ¶ 6). On September 9, 2002, George Keeling, a classification coordinator at MTCX, approached Owens and invited him to take part in a voluntary counseling program that TBOPP had recommended. J.A. at 12 (Compl. ¶ 6). The next day, an individual program planner hearing was held pursuant to TDOC Administrative Policies and Procedures ("APP") 508.04 regarding transferring Owens from MTCX to another facility so that he could receive counseling, which was not offered at MTCX. J.A. at 12, 13 (Compl. pp 7, 11, 14). At this meeting, Owens learned that TBOPP was postponing its consideration of his parole eligibility until he participated in the program. J.A. at 12 (Compl. ¶ 10). On September 13, 2002, a classification panel hearing was held, during which Charles Szostecki, a classification coordinator at MTCX and the chairperson of the panel, told Owens that he was being transferred to the West Tennessee High Security Facility to receive counseling, despite Owens's objection that he should not be transferred because he was incompatible with an inmate already imprisoned there. J.A. at 11, 13 (Compl. pp 3, 11-15). This same day, Owens filed a Classification Appeal. J.A. at 42-44 (Classification Appeal).

On September 16, 2002, having not yet received any response to his Classification Appeal, J.A. at 14 (Compl. ¶ 22), Owens wrote letters to Donal Campbell, Commissioner of TDOC, regarding his reclassification for mental health treatment and his placement on punitive segregation, J.A. at 45-46 (Owens Letter to Campbell at 1-2), and to Candace Whisman, his work supervisor, see J.A. at 47 (Whisman Letter to Owens, Sept. 27, 2002). On September 18, 2002, Owens filed an Inmate Grievance. The following day, Sheila Howard, MTCX grievance chairperson, notified Owens that his "GRIEVANCE IS UNABLE TO BE PROCESSED AS YOU HAVE SUBMITTED DUE TO YOU NOT FOLLOWING POLICY 501.01," and that "[c]lassification matters are inappropriate to Grievance Procedure." J.A. at 23 (Howard Memo.). On September 25, 2002, Owens was transferred to the Northwest Correctional Center Main Compound ("NWCC"), a second reclassification. J.A. at 14 (Compl. ¶ 23). On October 8, 2002, he was moved to the Northwest Correctional Center Annex ("NWCX") to attend the counseling program there. J.A. at 15 (Compl. ¶ 25).

Sometime after his transfer to NWCC and before October 30, 2002, Owens wrote to Fred Raney, then warden of NWCC and NWCX, regarding a transfer back to

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MTCX. J.A. at 48 (Raney Mem. to Owens). Then Owens again contacted Whisman, and she forwarded Owens's letter to Brandon Maloney, assistant director of classification. J.A. at 41 (Whisman Letter to Owens, Mar. 6, 2003). On March 12, 2003, Maloney sent Owens a letter acknowledging and then denying his transfer request. J.A. at 51 (Maloney Letter to Owens). Maloney suggested that Owens contact Raymond Goodgine, a classification coordinator at NWCC, about his reclassification hearing, but stated that Maloney's office would take no action unless the classification coordinator or his staff recommended a transfer. Id. On April 15, 2003, pursuant to Goodgine's advice, Owens wrote a letter to Keeling requesting to be transferred back to MTCX because he had completed his counseling at NWCX. J.A. at 49 (Owens Letter to Keeling). Keeling did not respond. On August 8, 2003, Owens wrote to Tony Parker, then warden of NWCC and NWCX, regarding a transfer back to MTCX. J.A. at 61 (Owens Letter to Parker). Parker forwarded this letter to Goodgine. J.A. at 63 (Goodgine Mem. to Owens). On August 18, 2003, Owens wrote to Howard Cook, TDOC commissioner of operations, regarding a transfer. See J.A. at 62 (Owens Letter to Cook). On August 20, 2003, Goodgine responded to Owens's letter to Parker by explaining that he contacted Keeling regarding Owens's transfer back to MTCX. J.A. at 63 (Goodgine Mem. to Owens). Goodgine included Keeling's response: " 'We sent subject there for mental health program at his request for treatment. We did not tell him he could come back after treatment. Per the Parole Board, he is to continue in current treatment and they will see him again 12/2004.' " Id. Goodgine concluded: "I sincerely hope this will reinforce the many times I have told you that if MTCX wanted you, they would send a request. By virtue of this letter, I consider this a finalized issue." Id. (emphasis added).

On June 9, 2003, Owens filed his first complaint in the United States District Court for the Middle District of Tennessee (Docket No. 3:03-cv-00516) alleging violations of his constitutional rights by TDOC officials, which the district court dismissed without prejudice for failure to exhaust. On June 26, 2003, Owens filed a motion for relief from judgment, as well as a supporting brief and documentation. The district judge acknowledged that the documentation attached to Owens's motion "show[ed] that he had fully exhausted his administrative remedies prior to the filing of this action," but denied the motion because "[a] prisoner plaintiff is not allowed to amend his complaint to avoid a sua sponte dismissal." Appellant Br. Ex. B (July 9, 2003 Order).

On August 22, 2003, Owens applied to proceed in forma pauperis in another action (Docket No. 3:03-mc-00085) against the same defendants. This matter was assigned to the same district judge, who denied Owens's application the day it was filed. Owens filed a motion to vacate the judgment denying his application. Owens then moved the district court to stay this motion pending the appeal he filed on October 22, 2003.

On September 25, 2003, Owens filed a third complaint (Docket No. 3:03-cv-00893) raising the same or similar claims. J.A. at 6-22 (Form Compl. at 1-5, Compl. at 2-13). The same district judge once again dismissed the complaint without prejudice for failure to exhaust and denied Owens certification to proceed in forma pauperis on appeal under 28 U.S.C. § 1915(a)(3) because "an appeal from the judgment ... would not be taken in good faith." J.A. at 71 (Oct. 8, 2003 Order). Owens then timely appealed the October 8, 2003 judgment dismissing his complaint,

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and that appeal is presently before us. J.A. at 78-79 (Notice of Appeal at 1-2).


A. Standard of Review

We review de novo a district court's dismissal of a prisoner's suit for failure to exhaust administrative remedies under the PLRA, 42 U.S.C. § 1997e(a). Burton v. Jones, 321 F.3d 569, 573 (6th Cir.2003); Curry v. Scott, 249 F.3d 493, 503 (6th Cir.2001).

B. Background

Although the PLRA's exhaustion requirement is "a necessary prerequisite to filing prisoner claims in federal court" rather than "jurisdictional," Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir.1999), we have directed that district courts can no longer waive the exhaustion requirement, see Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.1998). The prisoner bears the burden of demonstrating that he administratively exhausted his claim, either by attaching documentation of the relevant administrative decisions or by detailing the process followed and the outcome in the complaint. 1 Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir.2000). We have held that the PLRA does not require "total exhaustion," and have instead adopted a rule of "partial exhaustion"--that is, when a prisoner files a civil-rights complaint...

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