Dillon v. Rogers

• Decision Date: 04 February 2010
• Docket Number: No. 08-30419.,08-30419.
• Parties: Keith Mark DILLON, Plaintiff-Appellant, v. Brad ROGERS; T.W. Thompson; Sergeant Edwards; Sergeant Walker; Deputy Hartzglou; Lieutenant Hollifield; Thomas Pietsch, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

596 F.3d 260

Keith Mark DILLON, Plaintiff-Appellant, v. Brad ROGERS; T.W. Thompson; Sergeant Edwards; Sergeant Walker; Deputy Hartzglou; Lieutenant Hollifield; Thomas Pietsch, Defendants-Appellees.

No. 08-30419.

United States Court of Appeals, Fifth Circuit.

February 4, 2010.

Soren E. Gisleson, Herman, Herman, Katz & Cotlar, L.L.P., New Orleans, LA,

Adele Phyllis Kimmel (argued), Pub. Justice, P.C., Washington, DC, for Dillon.

Michael Wayne Landry, I, Asst. Atty. Gen. (argued), Lake Charles, LA, for Defendants-Appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before BENAVIDES, DENNIS and ELROD, Circuit Judges.

BENAVIDES, Circuit Judge:

Appellant Keith Mark Dillon appeals from the dismissal on summary judgment of his suit under 42 U.S.C. § 1983 for abuse he allegedly suffered while being held as a prisoner in Jena, Louisiana. For the reasons described below, we vacate the judgment of the district court and remand for further development of the record in this case.

I.

On August 29, 2005, when Hurricane Katrina made landfall in southeastern Louisiana, Dillon was being held as a prisoner at the Jefferson Parish Correctional Center ("Jefferson"), within the New Orleans metropolitan area. Due to the devastation caused by the hurricane, the Louisiana Department of Public Safety and Corrections ("DPSC") evacuated Dillon and other inmates from Jefferson on August 31, 2005 and moved them to a temporary facility in Jena, Louisiana ("Jena"). Dillon alleges that he was beaten and mistreated by Appellees in late September 2005 during his detention at Jena, resulting in hearing loss and other injuries. Shortly after this alleged abuse, in early October 2005, DPSC transferred Dillon to Allen Correctional Center ("Allen") in Kinder, Louisiana, and the temporary facility at Jena closed.

In July 2006, Dillon filed this section 1983 suit alleging violations of his civil rights during his incarceration. He proceeded pro se until late March 2007, after which he was represented by counsel. In November 2007, Appellees filed a motion to dismiss Dillon's suit for failure to exhaust administrative remedies, and shortly thereafter the magistrate judge hearing this case recommended that Appellees' motion be granted. However, the district court rejected the magistrate's recommendation and under Rule 12(d) converted Appellees' motion into a motion for summary judgment, as the parties had submitted evidence with their briefing going beyond the factual allegations in their pleadings. Subsequently, the district court granted summary judgment for Appellees in March 2008, on the ground that Dillon had failed to exhaust administrative remedies before bringing this suit. This appeal followed.

II.

Under the Prison Litigation Reform Act ("PLRA"), prisoners must properly exhaust "such administrative remedies as are available" prior to filing a section 1983 action concerning prison conditions. 42 U.S.C. § 1997e(a) (2006); Woodford v. Ngo, 548 U.S. 81, 83-84, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). Louisiana has a two-step Administrative Remedy Procedure ("ARP") for inmates, which they are required to use before filing suit in district court. La. Admin. Code tit. 22, § 325(A) (2009). Generally, the inmate commences the first step of the grievance process by writing a letter to the warden of his or her institution briefly setting out the basis for his or her claim and the relief sought. § 325(G)(1)(a). The grievance letter should be written within 90 days of the alleged event that is the subject of the complaint. Id. The Warden has 40 days from the day the grievance is received to respond to the request. Id. If following transfer to a new institution, the inmate files a grievance regarding an action taken by his or her former institution, the former institution "will complete the processing through the first step." § 325(G)(8). Furthermore, "[i]f the inmate believes the complaint is sensitive and would be adversely affected if the complaint became known at [his or her] institution," he or she may skip the first step and file his or her complaint directly with Louisiana's Assistant Secretary of Adult Services. § 325(G)(6)(a).

The inmate may proceed to the second step of the ARP by appealing to the Secretary of the DPSC if he or she is dissatisfied with the first step response. § 325(G)(2)(a). If the inmate never receives a response to a first step grievance, then he or she is entitled to proceed to the second step of the process upon the expiration of the first step response time limit. § 325(G)(4)(a). If the inmate is not satisfied with the second step response, he or she may then file suit in district court. § 325(G)(2)(b).

III.

"We review the grant of summary judgment de novo, applying the same standards as the district court." In re Egleston, 448 F.3d 803, 811-12 (5th Cir. 2006) (internal quotations omitted). Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "We construe all facts and inferences in the light most favorable to the nonmoving party when reviewing grants of motions for summary judgment." Murray v. Earle, 405 F.3d 278, 284 (5th Cir.2005). Whether a prisoner has exhausted administrative remedies is a mixed question of law and fact. Carty v. Thaler, 583 F.3d 244, 252 (5th Cir.2009). Similarly, while it is a question of law whether administrative remedies qualify as being "available" under 42 U.S.C. § 1997e(a), availability may sometimes turn on questions of fact. See Snider v. Melindez, 199 F.3d 108, 113-14 (2d Cir. 1999).

Since exhaustion is an affirmative defense, the burden is on Appellees to demonstrate that Dillon failed to exhaust available administrative remedies. Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). Consequently, Appellees must establish beyond peradventure all of the essential elements of the defense of exhaustion to warrant summary judgment in their favor. See Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409, 412 (5th Cir.2003).

A.

Dillon does not seriously dispute that he failed to satisfy the steps of the ARP that are prerequisite to filing a section 1983 action. Rather, he argues that his suit should not be barred because there was no remedy "available" to him during the 90-day period following the alleged abuse. Alternatively, he also argues his failure to exhaust should be excused on the basis of estoppel or the "special circumstances" surrounding his detention at Jena.

In opposition to Appellees' various motions seeking to dismiss this case, Dillon submitted affidavits alleging that no administrative grievance procedures were available to prisoners at Jena and that prisoners were explicitly told not to submit grievances. Dillon asserts that when he sought to file an administrative complaint at Jena after he was abused in late September 2005, Appellee Brad Rogers ordered him to kneel down for approximately an hour and told him to "forget" about filing a grievance. He also claims that guards checked prisoners' outgoing mail and destroyed writings detailing abuses, blocking him from filing a "sensitive issues" grievance under La. Admin. Code tit. 22, § 325(G)(6)(a). Nevertheless, Dillon did give a visiting lawyer a hand-written grievance, which he expected the lawyer to deliver to the DPSC. Dillon discovered after he had filed suit that the lawyer had failed to forward the grievance to the DPSC.

After the DPSC transferred Dillon to Allen in early October 2005, the 90-day period during which he could have filed a grievance under section 325(G)(1)(a) had not yet elapsed and would not do so until late December. However, Dillon alleges that Allen's Captain Wheaton and inmate counsel Dennis Coleman told him that he could not file an administrative grievance at Allen for abuse suffered at Jena. Nevertheless, Dillon claims to have submitted several grievances at Allen, requesting medical treatment for injuries sustained at Jena and inquiring whether he was actually barred from filing a grievance at Allen for abuse at Jena. Even if these grievances filed at Allen could qualify as "first step" grievances applicable to the claims advanced in this suit, Dillon never pursued them to the "second step" of the ARP process under section 325(G)(4)(a).

B.

Dillon argues this suit may proceed because there were no administrative remedies "available" to exhaust at Jena and Allen. When "the relevant administrative procedure lacks authority to provide any relief or to take any action whatsoever in response to a complaint," exhaustion is not required under the PLRA because there is no "available" remedy. Booth v. Churner, 532 U.S. 731, 736, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); see also Days v. Johnson, 322 F.3d 863, 867-68 (5th Cir.2003) (per curiam) (finding remedy "unavailable" when prisoner's injury prevented him from filing grievance), overruled by implication on other grounds by Jones, 549 U.S. at 216, 127 S.Ct. 910.¹ We are unable to determine whether administrative remedies were "available" for Dillon because the record was not sufficiently developed when the district court granted summary judgment for Appellees.

The district court did not address whether any administrative remedies were available to Dillon at Jena, instead focusing its analysis on whether remedies were available at Allen. We agree with the district court that the focus should be on availability at Allen—if remedies were available to Dillon at Allen, their unavailability at Jena would not suffice to excuse his failure to exhaust. Dillon was allegedly beaten at Jena in late September 2005 and was transferred in early October 2005. When he arrived at Allen, he could have filed a timely grievance for mistreatment at Jena anytime before late December 2005. See La....