United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION & ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE.
before the court is the defendant West Virginia Division of
Corrections's Motion to Dismiss Complaint for Failure to
Exhaust Administrative Remedies [ECF No. 43] and the
defendant David Martin's Motion to Dismiss Complaint [ECF
No. 48] (collectively, the “defendants'
Motions”). The plaintiff filed her Response [ECF No.
45] (“Resp.”) on October 31, 2016. The defendant
West Virginia Division of Corrections then filed its Reply
[ECF No. 50] on November 4, 2016, and defendant David Martin
did not file Reply. On November 21, 2016, the court entered
an Order [ECF No. 58] giving the defendants until December 9,
2016, to show cause why the plaintiff should be required to
exhaust administrative remedies where those remedies are not
available. On December 2, 2016, the West Virginia Division of
Corrections filed a memorandum showing cause [ECF No. 60],
which was later joined by David Martin [ECF No. 65]. The
plaintiff then filed a Response Memorandum [ECF No. 68]. The
matter is now ripe for adjudication. For the following
reasons, the court GRANTS the defendants' Motions.
plaintiff brought the present suit alleging that she was
sexually exploited in prison because the defendants failed to
afford her sufficient protections and contributed to sexual
harassment she suffered in prison. See Notice
Removal Ex. A, at 4-7 [ECF No. 1] (“Compl.”).
Specifically, the plaintiff asserts several state common law
claims and a federal claim that is, in essence, a § 1983
claim. Compl. 7-10. The plaintiff was incarcerated at the
Lakin Correctional Center (LCC) when she filed the case on
September 23, 2015. Compl. 4; Resp. 2. The LCC is a
correctional center operated by the West Virginia Division of
Corrections (“WVDOC”). Compl. 5. Further, the
WVDOC has policies and procedures for prisoner grievances
governed by WVDOC Policy Directive 335. Neither party
disputes that the plaintiff did not utilize the grievance
procedures established by the WVDOC before bringing this
case. See Resp. 1. The plaintiff has since been
released from prison. Resp. 2.
pleading must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). This standard
“does not require ‘detailed factual allegations,
' but ‘it demands more than an unadorned, the-
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To survive a motion to dismiss, “a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Id. (quoting Twombly, 550
U.S. at 570). A facially plausible claim is one accompanied
by facts allowing the court to draw the reasonable inference
that the defendant is liable, facts moving the claim beyond
the realm of mere possibility. Id. Mere
“labels and conclusions” or “formulaic
recitation[s] of the elements of a cause of action” are
insufficient. Twombly, 550 U.S. at 555.
defendants argue that the plaintiff's case should be
dismissed because she failed to exhaust the administrative
remedies available to her prior to bringing this lawsuit.
Mem. Supp. WVDOC Mot. Dismiss 3-5 [ECF No. 44]. The plaintiff
argues that she was not required to exhaust her
administrative remedies because (1) she is no longer
incarcerated, (2) she filed a pre-suit notification, and (3)
she did not know about the administrative remedies available
to her. See Resp.
the Prison Litigation Reform Act (“PLRA”) and
West Virginia Prison Litigation Reform Act
(“WVPLRA”) require inmates to exhaust their
administrative remedies before they bring a lawsuit. 42
U.S.C. § 1997e(a); W.Va. Code § 25-1A-2a(i). Under
the PLRA, “[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 confined in any jail,
prison, or other correctional facility until such
administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). The Supreme
Court has interpreted the PLRA broadly, stating that the
“PLRA's exhaustion requirement applies to all
inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Porter v.
Nussle, 534 U.S. 516, 532 (2002). If a plaintiff fails
to exhaust administrative remedies, the case must be
dismissed. See, e.g., Ferrell v. Miller,
No. 5:10-CV-01293, 2014 WL 131067, at *3 (S.D. W.Va. Jan. 10,
WVPLRA functions similarly. Indeed, this court recognized
that “West Virginia law requires inmates to exhaust
their administrative remedies before instituting any civil
action.” Baker v. Hammons, No. 2:15-CV-13849,
2016 WL 538481, at *2 (S.D. W.Va. Feb. 9, 2016) (citing W.Va.
Code § 25-1A-2(c)). Although the exhaustion requirements
are altered in cases involving sexual assault, “section
25-1A-2a of the West Virginia Code [still] requires an inmate
to exhaust his or her administrative remedies even in cases
involving violence, sexual assault, or sexual abuse-albeit
under special grievance procedures.” Id. at
*3. As with the PLRA, claims where the plaintiff failed to
exhaust administrative remedies must be dismissed under the
WVPLRA. Id. at *3.
neither party disputes the fact that the plaintiff did not
exhaust the administrative remedies available to her.
However, the plaintiff argues that she should be excused from
exhausting those remedies for several reasons. First, she
argues that she is no longer an “inmate” and
therefore should not have to exhaust administrative remedies.
Resp. 2. However, the plaintiff's status for purposes of
determining whether remedies must be exhausted is determined
at the time of filing. See, e.g., Cofield v.
Bowser, 247 F.App'x 413, 414 (4th Cir. 2007)
(“[I]t is the plaintiff's status at the time he
filed the lawsuit that is determinative as to whether the
§ 1997e(a) exhaustion requirement applies.”);
Norton v. The City of Marietta, OK, 432 F.3d 1145,
1150 (10th Cir. 2005) (“In light of the PLRA's
plain language, the other circuits to have addressed the
issue have unanimously held that it is the plaintiff's
status at the time he files suit that determines whether
§ 1997e(a)'s exhaustion provision applies.”);
Dixon v. Page, 291 F.3d 485, 489 (7th Cir. 2002)
(“[P]laintiff's status as a ‘prisoner' is
to be determined as of the time he brought the
lawsuit.”). Therefore, because the plaintiff's
status for PLRA and WVPLRA purposes is determined at the time
of filing and she was incarcerated when filed the lawsuit,
her later release does not exempt her from the exhaustion
the plaintiff argues that filing a mandatory pre-suit
notification with the WVDOC served the same purpose as a
grievance, and accordingly, she is exempt from the exhaustion
requirement. However, both the PLRA and WVPLRA explicitly
require the exhaustion of administrative remedies-not the
filing of a mandatory pre-suit notification. Where there is a
statutory mandate, “courts have a role in creating
exceptions only if Congress wants them to. So mandatory
exhaustion statutes like the PLRA establish mandatory
exhaustion regimes, foreclosing judicial discretion.”
Ross v. Blake, 136 S.Ct. 1850, 1853 (2016).
Therefore, because both statutes mandate the exhaustion of
administrative remedies, the plaintiff may not exempt herself
from the exhaustion requirement by utilizing an entirely
different procedure than that contemplated by the statutes.
the plaintiff argues she should be exempted from the
exhaustion requirement because she was unaware of
administrative remedies available to her. In support of her
argument, she cites Woodford v. Ngo, 548 U.S. 81
(2006), focusing on Justice Breyer's concurrence. In that
concurrence, Justice Breyer noted, “petitioners [may]
overcome procedural defaults if they can show the procedural
rule is not firmly established and regularly followed.”
Plaintiff has shown neither. Although she might have been
unaware of the rule, there are no facts before the court that
lead it to conclude that the WVDOC's grievance procedure
is not firmly established and regularly followed.
plaintiff has not shown that she is exempt from the
exhaustion requirements of the PLRA and WVPLRA. Consequently,
the court must dismiss this case because ...