Bey v. Johnson

• Decision Date: 27 April 2005
• Docket Number: No. 03-2331.,03-2331.
• Citation: 407 F.3d 801
• Parties: Lamar William Jones BEY, Plaintiff-Appellant, v. Kelly JOHNSON and Wayne Trierweiler, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

407 F.3d 801

Lamar William Jones BEY, Plaintiff-Appellant, v. Kelly JOHNSON and Wayne Trierweiler, Defendants-Appellees.

No. 03-2331.

United States Court of Appeals, Sixth Circuit.

Submitted: December 3, 2004.

Decided and Filed: April 27, 2005.

ON BRIEF: John L. Thurber, Office of the Attorney General, Lansing, Michigan for Appellees. Lamar William Jones Bey, Munising, Michigan, pro se.

Before: SILER and CLAY, Circuit Judges; BERTELSMAN, District Judge.^*

SILER, J., delivered the opinion of the court, in which BERTELSMAN, D. J., joined.

CLAY, J. (pp. 809-14), delivered a separate opinion concurring in part and dissenting in part.

OPINION

SILER, Circuit Judge.

Plaintiff Lamar William Jones Bey appeals from an order entered by the United States District Court for the Western District of Michigan, granting summary judgment to defendants Kelly Johnson and Wayne Trierweiler and dismissing with prejudice Jones Bey's First and Eighth Amendment claims brought pursuant to 42 U.S.C. § 1983. Because Jones Bey did not fully exhaust his administrative remedies, we REVERSE and REMAND this case to the district court to dismiss his petition without prejudice.

I.

A. Procedural History

Jones Bey is a prisoner at the Alger Maximum Correctional Facility in Munsing, Michigan. Johnson is a guard at the facility, and Trierweiler is the prison's grievance coordinator. Between October 2001 and April 2002, Jones Bey filed nine grievances against Johnson alleging various instances of misconduct and one against Trierweiler alleging a mishandling of these grievances.

Jones Bey filed this action against the defendants in their individual capacity in July 2002 claiming that both defendants violated his First Amendment rights, and that Johnson also violated his Eighth Amendment right to be free from the use of excessive force. The district court referred this case to a magistrate judge. The magistrate judge recommended that summary judgment be granted to the defendants because Jones Bey had not fully exhausted his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e. Alternatively, the magistrate judge stated that even if Jones Bey had exhausted his administrative remedies, none of his claims was sufficient to survive summary judgment. The district court adopted the report and recommendation and granted the defendants' motion for summary judgment.¹

B. Factual History

1. Claims Against Defendant Johnson

In October 2001, Jones Bey alleges that he was arbitrarily refused his "yard," or his time to exercise in the prison yard. Johnson claims that Jones Bey was not fully dressed when she came to his cell, and, therefore, he was not entitled to leave his cell. Jones Bey filed a grievance over this incident, in accordance with the Michigan Department of Corrections' three-step grievance procedure.² It was denied at all three steps.

After filing this initial grievance, Jones Bey contends that Johnson engaged in a series of retaliatory acts against him. Johnson allegedly came to Jones Bey's cell and said, "you like to write grievances huh? You know me and the counselor are related. I'm going to see if I can have him put some pressure on you to break you up from that habit."³ Jones Bey filed a grievance concerning this statement which he claims was appealed through Step III, but the record shows that the director's office never received the grievance.

Jones Bey also contends that five days later, while he was out on his yard period, Johnson searched, or "shook down," his cell. When Jones Bey returned to his cell, he allegedly found his possessions in disarray and pages torn out of two of his Islamic books. When Jones Bey confronted Johnson on the issue, she allegedly used racial slurs and told him to write a grievance about his complaints. He did file a grievance against Johnson, complaining both about the search and the use of racial slurs. He attached handwritten affidavits from two other prisoners claiming that they heard the sounds of paper tearing and the toilet flushing when Johnson was searching Jones Bey's cell. Again, this grievance was not appealed through Step III. Jones Bey sent a letter to the director's office concerning this grievance, but the return letter indicated that the director had not received Jones Bey's appeal on this grievance.

In December 2001, Jones Bey filed another grievance against Johnson for her use of racial slurs and derogatory language. He again attached handwritten affidavits from other prisoners who claim to have overheard these comments. This grievance was fully exhausted, but the prison determined that these claims had already been addressed at "the local level" and in Jones Bey's earlier grievances filed against Johnson.

On the same day, Johnson filed a major misconduct report against Jones Bey alleging "Assault and Battery (staff-victim)." Johnson's report alleged that in the course of returning Jones Bey to his cell, he spun his body around and swung Johnson's hands against the food slot as she was trying to remove his handcuffs, resulting in some redness and pain in her hands. Jones Bey, however, claimed that she handcuffed him too tightly and that she pulled on the handcuffs forcing his hands against the food slot. He claims that he suffered "extreme pain" as a result of this altercation, but an X-ray showed no broken bones. Three days later, Jones Bey filed a grievance against Johnson alleging that Johnson filed the major misconduct report in retaliation for all of the grievances he filed against her. He additionally alleges that Johnson fabricated the misconduct report in order to conceal her alleged misconduct.⁴ In January 2002, he was cleared of all wrong doing against Johnson after an independent hearing on the major misconduct charge.

Jones Bey alleges that after he was acquitted of the major misconduct, Johnson made threatening remarks about "getting even" and put him in a segregation yard as retaliation. He filed and exhausted a grievance with respect to this claim. He also filed another grievance against her for alleged use of more racial slurs. This grievance, too, was denied at all three stages. Finally, Jones Bey alleges in his complaint that an officer named Zimmerman "shook down" his cell and confiscated some of his legal papers on Johnson's orders. However, this complaint was never grieved. Johnson denies all of the allegations against her, claiming that she never made intimidating statements or retaliated against Jones Bey in any way.

2. Claims Against Defendant Trierweiler

Jones Bey's only claim against Trierweiler stems from Trierweiler's alleged mishandling of grievances filed by Jones Bey. Jones Bey states that Trierweiler arbitrarily rejected or denied his grievances because they were unclear, not concise, contained extraneous information, or related to non-grievable or already grieved issues. He also claims that Trierweiler did not follow the Prisoner's Grievance Policy set forth by the Michigan Department of Corrections. When this grievance reached Step III, the director noted that even if Trierweiler denied a grievance at Step I, Jones Bey could always have appealed his complaints to Steps II and III.

II.

We review the district court's grant of summary judgment de novo. Copeland v. Machulis, 57 F.3d 476, 478-79 (6th Cir. 1995). Furthermore, we review the district court's exhaustion determination in a PLRA case de novo. Curry v. Scott, 249 F.3d 493, 503 (6th Cir.2001).

Because Jones Bey's complaint alleged both exhausted and unexhausted claims, we must definitively answer an open question in this circuit: whether the PLRA requires a complete dismissal of a prisoner's complaint when that prisoner alleges both exhausted and unexhausted claims. We hold that it does.

The PLRA requires that a prisoner must exhaust administrative remedies before filing suit in the district court. It states: "No 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." 42 U.S.C. § 1997e(a) (2004). The plaintiff-prisoner has the burden of proving that a grievance has been fully exhausted, Baxter v. Rose, 305 F.3d 486, 488 (6th Cir.2002), and the prisoner must attach documentation to the complaint as proof. Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.1998). Exhaustion is not jurisdictional; it is mandatory, Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir.1999), even if proceeding through the administrative system would be "futile." Hartsfield v. Vidor, 199 F.3d 305, 308-10 (6th Cir. 1999).

Although the PLRA's exhaustion requirement is clearly mandatory as to each individual claim, we have specifically left unanswered the question of whether the PLRA's exhaustion requirement applies such that a "mixed" complaint, alleging both exhausted and unexhausted claims, must be completely dismissed for failure to exhaust administrative remedies. See Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir.2000) ("We reserve to another day the question of whether exhausted claims in a `mixed' complaint should be addressed when such claims otherwise meet the pleading requirements or whether such a complaint should be dismissed in its entirety.").

Our cases addressing PLRA exhaustion are somewhat inconsistent. At least one of this court's prior decisions suggests that total exhaustion is not required under the PLRA. In Hartsfield, 199 F.3d at 309-10, the plaintiff's complaint alleged misconduct by five prison officials; however, the plaintiff only exhausted his administrative remedies against three defendants. Without addressing the issue of total exhaustion, we held that the exhausted claims could be addressed on the merits while the unexhausted claims could be dismissed without prejudice. Id. This procedure has been followed in some of our unpublished...