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Murray v. Matheney

United States District Court, S.D. West Virginia, Charleston Division

November 29, 2017

GARLAND MURRAY,
v.
RUSSELL MATHENEY, et al.,

          MEMORANDUM OPINION AND ORDER

          JOSEPH R. GOODWIN UNITED STATES DISTRICT JUDGE

         Pending before the court is Defendants' Motion in Limine to Exclude Testimony from Plaintiff Regarding his Exhaustion of Administrative Remedies Prior to the Filing of the Instant Action [ECF No. 302]. The plaintiff filed a Response [ECF No. 303]. The matter is now ripe for adjudication. For the following reasons, the Motion is DENIED.

         I. Brief Factual and Procedural Background

         On June 26, 2013, the plaintiff, Garland Murray, filed the first complaint in this action. Compl. [ECF No. 2]. Since then, many of the defendants and several of the counts have been dismissed either voluntarily or by court order. Currently, there are four defendants left in the action including: James Rubenstein, David Ballard, Russell Matheny, and Steve Caudill. The matter is currently set for trial on March 6, 2018. Second Am. Scheduling Order [ECF No. 305].

         On November 6, 2017, these defendants filed this motion in limine. Defs.' Mot. Limine to Exclude Test. from Pl. Regarding his Exhaustion of Admin. Rem. Prior to the Filing of the Instant Action (“Defs.' Mot.”) [ECF No. 302]. The motion was filed over two months after motions in limine were due. Scheduling Order [ECF No. 143] (“[I]t is further ORDERED that this case shall proceed as follows: . . . Filing of motions in limine. 9/4/2017”). In the motion, the defendants state that it is their intention, “at trial, to assert the affirmative defense of failure [to] exhaust administrative remedies, ” pursuant to the Prison Litigation Reform Act (“PLRA”) and West Virginia Prison Litigation Reform Act (“WVPLRA”). Defs.' Mot. 2. Regarding this defense, the defendants asked the court to “exclude any testimony, argument, and/or the introduction of any evidence by the [p]laintiff or his counsel suggesting that . . . [the] [p]laintiff exhausted his administrative remedies as required” by the PLRA and WVPLRA. Id. at 1. The defendants believe that this is appropriate since the court previously granted summary judgment in favor of two former co-defendants based on the plaintiff's lack of exhaustion. Id. at 2 (citing Mem. Op. & Order [ECF No. 300]). According to the defendants, “[i]t follows that [the] [p]laintiff has also failed to exhaust his administrative remedies as to these [d]efendants.” Id.

         In his response, the plaintiff argues that the defendants waived the defense of exhaustion by not raising it until now, and therefore should not be allowed to present any further argument regarding it. Pl.'s Resp. Opp'n to Defs.' Mot. 1 (“Pl.'s Resp.”) [ECF No. 303].

         II. Discussion

         The PLRA states that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title . . . by a prisoner confined in any . . . correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Like the PLRA, the WVPLRA “require[s] inmates to exhaust their administrative remedies before they bring a lawsuit.” Legg v. Adkins, No. 2:16-cv-01371, 2017 WL 722604, at *2 (S.D. W.Va. 2017) (citing 42 U.S.C. § 1997e(a); W.Va. Code § 25-1A-2a(i)).

         a. Waiver

         “[F]ailure to exhaust is an affirmative defense under the PLRA.” Jones v. Block, 549 U.S. 199, 216 (2007). “Defendants may waive or forfeit reliance on § 1997e(a), just as they may waive or forfeit the benefit of a statute of limitations.” Perez v. Wisconsin Dep't of Corr., 182 F.3d 532, 536 (8th Cir. 1999).

         The plaintiff argues that the defendants failed to raise the “affirmative defense of exhaustion at any appropriate time in the proceeding” and therefore have waived the defense. Pl.'s Resp. 1. Specifically, the plaintiff points to the fact that the defendants did not raise the issue in a motion to dismiss or a motion for summary judgment. Id. The plaintiff, however, ignores the fact that the defendants pleaded the defense in their answer. As their sixteenth defense, the defendants asserted “any and all defenses available to them pursuant to the West Virginia Prisoner Litigation Reform Act, W.Va. Code §25-1A-1, et seq; and the Prisoner Litigation Reform Act, 42 USC §1997e.” Defs. Johnathan Frame, Curtis Dixon, Russell Matheny & Steve Caudill's Answer to Am. Compl. 20 [ECF No. 117]; Defs. James Rubenstein, David Ballard & David Miller's Answer to Am. Compl. 20 [ECF No. 127].

         Under Federal Rule of Civil Procedure 8(c), defendants, in response to a pleading, must affirmatively state any affirmative defense. The Fourth Circuit has held that “[a]n affirmative defense may be pleaded in general terms and will be held to be sufficient . . . as long as it gives plaintiff fair notice of the nature of the defense.” Clem v. Corbeau, 98 Fed.App'x 197, 203 (4th Cir. 2004). Here, the defendants assertion that they would rely on “any and all defenses available to them pursuant to the West Virginia Prisoner Litigation Reform Act, W.Va. Code §25-1A-1, et seq; and the Prisoner Litigation Reform Act, 42 USC §1997e” was enough to give the plaintiff fair notice that they may raise exhaustion as a defense, and was therefore a properly pleaded affirmative defense. See Thornton v. Cnty. Of Albany, No. 9:14-CV-679, 2016 WL 5793714, at *5 (N.D.N.Y. Oct. 4, 2016) (explaining that defendants can plead “‘failure to exhaust, ' ‘failure to exhaust administrative remedies, ' ‘failure to comply with the PLRA, ' or similar language in order to preserve” exhaustion as an affirmative defense).

         There is no requirement that defendants who have properly pleaded exhaustion as an affirmative defense in their answer must also file a motion for summary judgment or motion to dismiss in order to preserve the defense. Villante v. R. Vandyke, 93 Fed.App'x 307, 309 (2d Cir. 2004) (courts have, “never required defendants who have properly pled the defense in their answer to also file a motion for summary judgment on exhaustion grounds in order to preserve the defense.”); Drippe v. Tobelinski, 604 F.3d 778, 782 (3rd Cir. 2010) (explicitly declining to find that the defendant waived the defense of exhaustion when the defendant raised exhaustion as an affirmative defense in his answer but failed to raise the defense again until after the deadline imposed by the court for dispositive motions had passed); Coons v. Indus. Knife Co., Inc., 620 F.3d 38, (1st Cir. 2010) (“With one narrow exception . . . see Fed.R.Civ.P. 12(h)(1), a party does not waive a properly pleaded defense by failing to raise it by motion before trial.”). Since the defendants properly pleaded the defense of exhaustion, and there is no requirement that they also raise the issue in a motion to dismiss or motion for summary judgment, the court FINDS that the defense was not waived.

         b. Exclusion of the Plaintiff's Evidence ...


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