Johnson v. Testman

• Decision Date: 18 August 2004
• Docket Number: No. 02-0145.,02-0145.
• Citation: 380 F.3d 691
• Parties: Lawrence JOHNSON, Plaintiff-Appellant, v. Ronald TESTMAN, Lonnie James, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

380 F.3d 691

Lawrence JOHNSON, Plaintiff-Appellant, v. Ronald TESTMAN, Lonnie James, Defendants-Appellees.

No. 02-0145.

United States Court of Appeals, Second Circuit.

Argued: May 27, 2004.

Decided: August 18, 2004.

Appeal from the United States District Court for the Eastern District of New York, Gleeson, J John Boston, Legal Aid Society, Prisoners' Rights Project, New York, N.Y. (Daniel L. Greenberg and Mary Lynne Werlwas, on the brief), for Plaintiff-Appellant.

F. Franklin Amanat, Assistant U.S. Attorney, for Roslynn R. Mauskopf, U.S. Attorney, Eastern District of New York, Brooklyn, N.Y. (Deborah B. Zwany, on the brief), for Defendants-Appellees.

Before: CALABRESI and SACK, Circuit Judges, and PAULEY, District Judge.¹

CALABRESI, Circuit Judge.

Lawrence Johnson ("Johnson" or "plaintiff"), formerly an inmate at the Metropolitan Detention Center ("MDC") in Brooklyn, New York, filed suit against the defendants, corrections officers at MDC, in the United States District Court for the Eastern District of New York. Johnson, proceeding pro se, sought damages under 42 U.S.C. § 1983 for injuries sustained when he was attacked by another inmate, who was allegedly incited by defendant Ronald Testman ("Testman"), and when defendant Lonnie James ("James") purportedly left him for seven hours with his hands cuffed behind his back, in a cell with another inmate. The district court (Gleeson, J.) denied the defendants' motion to dismiss on qualified immunity grounds, but dismissed the plaintiff's complaint for failure to exhaust available administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a).

Johnson appealed, and his suit was argued alongside several other cases concerning the nature and scope of the PLRA's exhaustion requirement.² For the following reasons, we vacate the district court's dismissal of Johnson's complaint, and remand the case for further proceedings.

I. Background

A. The Bureau of Prisons' Administrative Remedy Program

The MDC, where Johnson was incarcerated during the period relevant to this appeal, is a facility operated by the U.S. Bureau of Prisons ("BOP"). The BOP provides prisoners a grievance procedure applicable to confinement-related issues. The procedure is called the Administrative Remedy Program ("ARP"), and consists of up to four steps, depending upon the circumstances. In some cases, the inmate is required to seek informal resolution of his complaint. Then, if the matter is not resolved, he must file an Administrative Remedy Request at his facility within twenty days of the incident. If the inmate is not satisfied with the facility's reply, he may file a Regional Appeal to the BOP's Regional Director within twenty days of the warden's response. In some situations, including those involving "sensitive subjects," appeals from disciplinary proceedings, and other specified matters, the inmate may begin the process with a Regional Appeal. In all cases, if the prisoner is not satisfied with the Regional Director's resolution of the matter, he may appeal to the Central Office, within thirty days. "At all stages of the ARP, prison staff must inform the inmate in writing of the appropriate administrative procedure if the Request or Appeal is not acceptable under the Administrative Remedy Program." See 28 C.F.R. § 542 (1998).

B. Facts and Procedural History

Johnson's allegations are set forth in his original complaint, as well as his First and Second Amended Complaints. We recount the facts as described in those three pleadings.

1. Johnson's Claim against Testman

Johnson alleges that he was in the MDC barber shop with other inmates when one of the barbers asked Johnson to demonstrate a type of haircut called the "Fadeout." Defendant Corrections Officer ("CO") Testman saw Johnson using the hair clippers, asked Johnson what he was doing with them, and after hearing his reply, told the inmates that he was terminating barber shop services for the day because of Johnson's use of the clippers. When inmate Elio Franco asked why he couldn't get a haircut, Testman allegedly told him it was due to Johnson's unauthorized use of the clippers, and that if Franco "ha[d] a problem with not being able to get a haircut," he should "take it up with Johnson." Franco said "yea, O.K.," and left the area. Shortly thereafter, as Johnson was walking down a hallway, he was attacked by Franco, who plunged a tile cutter into Johnson's neck and slashed his face and upper torso. Johnson claims the attack caused him serious injuries to his face, neck, and upper torso, as well as "emotional damage."

After the assault, Johnson received a disciplinary infraction for "fighting with another person," and was placed in administrative detention in the Special Housing Unit (SHU) while he awaited a hearing. At the hearing, Johnson described the circumstances surrounding the attack, including Testman's alleged comment to Franco. Nevertheless — based on the incident report, his own statement, and Franco's statement — Johnson was found guilty of the infraction, and was sentenced to an additional 21 days in the SHU, the loss of 30 days of "good conduct" time, and a year's loss of visiting and commissary privileges.

Johnson appealed the disciplinary conviction to the BOP's Northeast Regional Office. On appeal, he again recounted Testman's conduct. Johnson's regional appeal was denied, and he sought review by the BOP Central Office. The Central Office ruled in Johnson's favor, finding that the incident report "[did] not describe any factual evidence inmate Johnson was actual[ly] fighting and not a victim in this case." It therefore remanded the incident report to the MDC for a new hearing, at which Johnson was exonerated.

2. Johnson's Claim against James

After defendants answered his original complaint, Johnson filed an Amended Complaint on March 23, 2000, naming additional defendants, adding state law claims, as well as claims against CO James based on another incident. The district court appointed counsel, who, in July 2001, filed a Second Amended Complaint on Johnson's behalf. According to the Second Amended Complaint, on October 16, 1999, James asked Johnson to come to his cell door to be handcuffed while another inmate was placed in the cell. Johnson complied; his hands were cuffed behind his back; an inmate was placed in the cell and that inmate's cuffs were removed. Johnson asked James to remove his cuffs, but James refused. Johnson then asked to speak to a lieutenant, and James denied his request. Johnson remained rear-cuffed for seven hours, and suffered severe pain in his shoulder and back, for which he was treated by the on-duty physician.

James thereafter issued a disciplinary infraction to Johnson, citing him for "refusing to obey an order of any staff member." James maintained that Johnson had refused to be rear-cuffed. Johnson was found guilty of the infraction and received a 30-day loss of visiting and commissary privileges. His appeal to the facility warden was denied, but he sought review of that denial to the Northeast Regional Office, which granted his appeal and directed MDC to conduct further investigation because the "evidence is contradictory." MDC, however, apparently failed to investigate, and Johnson filed another appeal with the Regional Office. The Regional Office "elected to expunge the incident reports," because (1) Johnson had been moved from Brooklyn to Atlanta, (2) it had taken an "extended length of time ... to correct the error," and (3) "there is a lack of sufficient information at this stage of the process to support the charges." Having prevailed, Johnson filed no further appeals.

3. Subsequent Procedural History

On December 7, 2001, defendants Testman and James filed a motion to dismiss plaintiff's complaint or, in the alternative, for summary judgment.³ In their motion, the defendants contended that they were entitled to qualified immunity, and that Johnson had not exhausted his administrative remedies against Testman. After oral argument on January 11, 2002, the district court denied the defendants' motion to dismiss on the basis of qualified immunity, and reserved decision on the exhaustion issue. After the Supreme Court's decision in Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002), the district court dismissed Johnson's complaint without prejudice, finding that he had failed to meet the exhaustion requirement as to his claims against both Testman and James. The court found it unnecessary to consider whether James had waived the exhaustion requirement. It noted first that our circuit had not yet decided the validity of such waivers. And then, interpreting circuit case law to require the dismissal of exhausted claims when these are filed together with unexhausted ones, the court stated that "Johnson's failure to exhaust his claim as against Officer Testman requires that I dismiss the entire case."

Johnson filed a timely notice of appeal on May 7, 2002. We appointed counsel, and ordered briefing on the following issues: (1) whether the plaintiff exhausted his claims against Testman by describing the defendant's alleged activities at the BOP's disciplinary proceedings; (2) whether Johnson exhausted his claims against James through the BOP's administrative scheme, even though he did not appeal to the Office of General Counsel; (3) whether James waived the affirmative defense of exhaustion by failing to raise that defense in his motion papers; and (4) whether the PLRA compels a rule of total exhaustion.⁴

II. Discussion

A. Waiver of Non-Exhaustion Defense as to Claim against James

The failure to exhaust available administrative remedies is an affirmative defense. Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir.1999). We have in the past instructed district courts, on remand, to consider "whether defendants waived compliance with the exhaustion requirement by failing to raise it." Davis v. New York, 316 F.3d 93,...