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Thomas v. Goodwin

United States District Court, W.D. Louisiana, Shreveport Division

March 6, 2018

COREY P. THOMAS
v.
JERRY GOODWIN, ET AL

          REPORT AND RECOMMENDATION

          MARK L. HORNSBY U.S. MAGISTRATE JUDGE

         Introduction

         Corey P. Thomas (“Plaintiff”) is a self-represented prisoner who filed this complaint against officials at the David Wade Correctional Center (“DWCC”). He alleges that he was subject to physical abuse and that Warden Jerry Goodwin, Captain Johnny White, Sgt. Tony Sepulvado, and Colonel Scott Cantrell are liable to him for violation of civil rights. Defendants responded to the complaint with a Motion to Dismiss pursuant to F.R.C.P. 12(b)(1) and 12(b)(6) (Doc. 22). The motion argues that the complaint should be dismissed because Plaintiff did not exhaust his administrative remedies before filing it. Plaintiff has not filed any opposition to the motion. For the reasons that follow, it is recommended that the motion be treated as one for summary judgment and granted.

         The Complaint

         Plaintiff alleges in his complaint that he entered DWCC in December 2015 as a transferee from the Elayn Hunt Correctional Center. He was asked to bend over and open his anus. He alleges that he complied and then heard Captain White ask, “What was that?” Plaintiff alleges that he said nothing. Captain White apparently thought that Plaintiff was hiding contraband and allegedly told Sgt. Sepulvado to grab Plaintiff.

         Plaintiff alleges he was forced to the ground on his stomach, and White and Sepulvado “grabbed and inserted fingers in my anus, only to retrieve tissue paper, a piece of tissue paper that was left behind due to an earlier bowel movement.” Plaintiff alleges that afterwards his anus was bleeding, he was denied medical attention, and he was “written up for dirty urine.” He alleges that an officer later threatened that he drop a related ARP grievance “or get locked up.” Plaintiff prays for $10, 000, 000 in damages, and he wants the defendants to be “fired and brought up on charges.”

         The complaint forms issued by this court, consistent with law discussed below, no longer direct prisoners to allege exhaustion at the pleading stage. Old complaint forms that do include questions about exhaustion are, however, still in circulation at some prisons and jails. Plaintiff filed this action on an old form.

         He checked boxes to indicate that (1) there was a grievance procedure available at the institution and (2) he presented facts related to his complaint in a grievance. He was asked to provide the grievance number. Plaintiff wrote that he had misplaced the papers and that the facility would not provide him copies. When asked what steps he took, he wrote, “I told a colonel, written a ARP, then I contacted PREA.” (The PREA reference presumably refers to an authority associated with the Prison Rape Elimination Act.) The form asked for the results. Plaintiff wrote, “inconclusive, no investigation, threats, assaults, verbal abuse.”

         Analysis

         A. The Exhaustion Requirement

         Defendants argue that Plaintiff's complaint is subject to dismissal because Plaintiff did not exhaust his administrative remedies before he filed suit. The defense is based on the provision in 42 U.S.C. § 1997e(a) enacted by the Prison Litigation Reform Act (“PLRA”). It provides, “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.” The statute applies to actions that allege the use of excessive force or denial of medical care. Porter v. Nussle, 122 S.Ct. 983 (2002); Harris v. Hegmann, 198 F.3d 153 (5th Cir. 1999).

         The statute requires proper exhaustion in accordance with prison or jail procedures. Woodford v. Ngo, 126 S.Ct. 2378 (2006). The grievance procedure for state prisoners is set forth in Louisiana Administrative Code, Title 22, Part I, § 325. It allows an inmate to commence the grievance process by writing a letter or filing a grievance with the warden that sets out the basis for the prisoner's claim and the relief he seeks. A grievance may be accepted (and addressed on the merits) or rejected for various procedural reasons. If the grievance is accepted, it is first ruled upon by the warden or his designee. An inmate who is dissatisfied with the first step response may appeal to the Secretary of the Department of Public Safety and Corrections, who issues the final decision. A prisoner who is not satisfied with that final response may file suit in a district court.

         B. Exhaustion is Not Jurisdictional

         Defendants argue that the complaint does not allege facts that show proper exhaustion, and they contend that this means the court lacks subject-matter jurisdiction and can dismiss pursuant to F.R.C.P. 12(b)(1). The jurisdictional attack is off the mark because “a prisoner's failure to exhaust administrative remedies does not deprive courts of subject-matter jurisdiction in suits covered by the PLRA.” Dillon v. Rogers, 596 F.3d 260, 271 ...


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