Lee v. Willey

• Decision Date: 18 June 2015
• Docket Number: No. 14–1359.,14–1359.
• Citation: 789 F.3d 673
• Parties: Larry LEE, Plaintiff–Appellant, v. Dean WILLEY, et al., Defendants, Supriya Kopf, Personal Representative of the Estate of Kameshwari Mehra, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

789 F.3d 673

Larry LEE, Plaintiff–Appellant

v.Dean WILLEY, et al., Defendants

Supriya Kopf, Personal Representative of the Estate of Kameshwari Mehra, Defendant–Appellee.

No. 14–1359.

United States Court of Appeals, Sixth Circuit.

Argued: April 23, 2015.

Decided and Filed: June 18, 2015.

ARGUED:Mark R. Bendure, Bendure & Thomas, Detroit, Michigan, for Appellant. Patrick McLain, Kerr, Russell and Weber, PLC, Detroit, Michigan, for Appellee. ON BRIEF:Mark R. Bendure, Bendure & Thomas, Detroit, Michigan, for Appellant. Patrick McLain, Kerr, Russell and Weber, PLC, Detroit, Michigan, for Appellee.

Before: GUY, MOORE, and McKEAGUE, Circuit Judges.

OPINION

RALPH B. GUY, JR., Circuit Judge.

Plaintiff Larry Lee, formerly a state prisoner, appeals from the entry of summary judgment in favor of the now-deceased Dr. Kameshwari Mehra, a part-time prison psychiatrist, with respect to Lee's § 1983 claim for deliberate indifference to an inmate's health or safety in violation of the Eighth Amendment. See 42 U.S.C. § 1983 ; Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The district court determined that Lee had failed to exhaust his administrative remedies with respect to this claim as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). For the reasons that follow, we affirm the dismissal of this claim.¹

I.

Lee, a homosexual man described as having effeminate mannerisms, was transferred from the Washtenaw County Jail to the custody of the Michigan Department of Corrections (MDOC) following his conviction on two counts of criminal sexual conduct involving adult male victims. Lee's complaint asserted a variety of claims against a number of prison officials arising out of Lee's confinement at the MDOC's Charles Egeler Reception and Guidance Center (RGC) for intake and processing from March 23, 2007, until his transfer to another facility on May 9, 2007. This appeal is confined to the claim that Dr. Mehra, a treating psychiatrist under contract with the MDOC, was deliberately indifferent to Lee's need for protection from prisoner-on-prisoner sexual assault.

The complaint alleged, in part, that several correctional officers (COs) had harassed Lee about being homosexual and/or made comments in front of other inmates encouraging sexual advances. Lee alleged that three COs failed to act when Lee requested protection from inmates who were pursuing him for sex. Further, Lee averred that he complained, to no avail, about staff harassment and/or being pursued for sex to mental health professionals Paul Schneeman, Wills Dixon, and Dr. Mehra on March 26, April 2, and April 6, 2007, respectively. Lee maintained that, despite having asked for protection, he was raped in his cell by two unidentified inmates when he decided not to go to dinner on April 9, 2007.

Lee alleged that he went to the officer's desk after being assaulted, asked to speak with a mental health professional, and argued with an unknown CO who refused to give him a grievance form. Then, on the way to lunch the next day, CO Zischke refused to give him a grievance form and called him a “faggot.” Lee alleged that, as a result, he resorted to submitting a “substitute grievance” on prisoner stationery on April 10, 2007. Defendants had no record of receiving this three-page substitute grievance letter—the only grievance from Lee that mentioned having been raped—and disputed whether it had been submitted as Lee claimed. Lee alleged that the COs continued to harass him about his sexual orientation until he was transferred to another facility on May 9, 2007.

This action was filed in July 2010, a few months before Lee's release on parole. Dr. Mehra's first motion for summary judgment for failure to exhaust administrative remedies was denied. Lee's claims were narrowed when defendants' motions for summary judgment on the merits were granted in part, and denied in part, in October 2012. The claims that survived summary judgment were: (1) a § 1983 claim for deliberate indifference to threats to Lee's safety against Dr. Mehra; (2) a § 1983 claim for deliberate indifference to threats to Lee's safety against six MDOC defendants (Sgt. Thomas, CO Willey, CO Bagley, CO Owen, CO Zischke, and psychologist Dixon); and (3) a state-law claim for intentional infliction of emotional distress against two of the MDOC defendants (Thomas and Willey).

The proceedings were stayed during Dr. Mehra's interlocutory appeal from the denial of qualified immunity. This court affirmed the denial in October 2013, concluding that, as a private employee under contract with the MDOC, Dr. Mehra was not entitled to assert a qualified immunity defense. Once the stay was lifted, the MDOC defendants—joined by the separately represented Dr. Mehra—moved for a bench trial to resolve factual disputes regarding exhaustion of the claims purportedly raised in the substitute grievance. Concluding that Lee did not have a right to a jury trial on these issues, the district court granted defendants' motion and conducted a full-day bench trial on February 20, 2014.

During the bench trial, the district court heard testimony from eight witnesses—including Lee—and received the parties' respective exhibits. Weighing the evidence and determining credibility, the district court made the critical factual finding that Lee had not submitted the substitute grievance letter on April 10, 2007. With that finding, and Lee's acknowledgement that no other grievance had mentioned Dr. Mehra at Step I, the renewed motion for summary judgment filed on behalf of Dr. Mehra was granted on March 4, 2014. All the claims against the remaining MDOC defendants were dismissed by stipulation the same day, and this appeal followed.²

II.

The PLRA provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner ... until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This requirement is mandatory but not jurisdictional, and applies to all federal claims seeking redress for prison circumstances or occurrences regardless of the type of relief being sought. See Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) ; Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). The PLRA has been interpreted to require “proper exhaustion,” meaning that a prisoner must “ ‘complete the administrative review process in accordance with the applicable procedural rules,’... [as] defined not by the PLRA, but by the prison grievance process itself.” Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (quoting Woodford v. Ngo, 548 U.S. 81, 88, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) ). Failure to exhaust administrative remedies is an affirmative defense, which the defendant has the burden to plead and prove by a preponderance of the evidence. Id. at 216, 127 S.Ct. 910.

A prisoner's lack of compliance may be excused if the administrative remedies are not available, but this court has required a prisoner to make “ ‘affirmative efforts to comply with the administrative procedures before analyzing whether the facility rendered these remedies unavailable.’ ” Napier v. Laurel Cnty., 636 F.3d 218, 223 (6th Cir.2011) (citation omitted); see also Brock v. Kenton Cnty., 93 Fed.Appx. 793, 798 (6th Cir.2004) (citing cases). When a prisoner makes affirmative efforts to comply but does not succeed, we analyze “whether those ‘efforts to exhaust were sufficient under the circumstances.’ ” Risher v. Lappin, 639 F.3d 236, 240 (6th Cir.2011) (quoting Napier, 636 F.3d at 224 ).

A. Right to Jury Trial

This court has not previously addressed whether material questions of fact concerning exhaustion under the PLRA should be decided by a judge or a jury. However, all six of the circuits that have considered the issue agree that “judges may resolve factual disputes relevant to the exhaustion issue without the participation of a jury.”Small v. Camden Cnty., 728 F.3d 265, 271 (3d Cir.2013) ; see also Messa v. Goord, 652 F.3d 305, 308–09 (2d Cir.2011) (per curiam); Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir.2010) ; Pavey v. Conley, 544 F.3d 739, 742 (7th Cir.2008) ; Bryant v. Rich, 530 F.3d 1368, 1373–77 (11th Cir.2008) ; Wyatt v. Terhune, 315 F.3d 1108, 1119–20 (9th Cir.2003), overruled on other grounds by Albino v. Baca, 747 F.3d 1162, 1166, 1170–71 (9th Cir.2014) (en banc), cert. denied, –––U.S. ––––, 135 S.Ct. 403, 190 L.Ed.2d 307 (2014). We review this question of law de novo.

The Seventh Amendment guarantees a right to a jury trial on the merits of an action seeking legal relief under § 1983. City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 709, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999). But, “not every factual issue that arises in the course of a litigation is triable to a jury as a matter of right, even if it is a suit at law (rather than in equity) within the meaning of the Seventh Amendment.” Pavey, 544 F.3d at 741 ; see also Small, 728 F.3d at 269 ; Messa, 652 F.3d at 309 ; Dillon, 596 F.3d at 271. For example, judges may resolve disputed facts in deciding threshold issues of judicial administration such as subject-matter jurisdiction, personal jurisdiction, venue, and abstention in favor of another court or agency. Accord Albino, 747 F.3d at 1170 ; Small, 728 F.3d at 269–70 ; Dillon, 596 F.3d at 271–72.

It is true, as Lee observes, that the issue of exhaustion differs from subject-matter jurisdiction because exhaustion is a non-jurisdictional affirmative defense. Woodford, 548 U.S. at 101, 126 S.Ct. 2378. Failure to exhaust more closely resembles the waivable defenses of lack of personal jurisdiction and improper venue, although exhaustion under the PLRA differs in that it is a prerequisite or precondition for bringing suit in any court. See Small, 728 F.3d at 269. These differences, however, do not alter our conclusion that exhaustion under the PLRA is analogous to...