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Spradlin v. Wood

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

May 10, 2019




         Pending before the Court are Plaintiff's Application to Proceed Without Prepayment of Fees and Costs, (ECF No. 1), and his Complaint filed pursuant to 42 U.S.C. § 1983. (ECF No. 2). In keeping with 28 U.S.C. § 1915(e)(2), the undersigned has conducted a preliminary review of Plaintiff's complaint to determine if the action is frivolous, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. Although pro se complaints, such as the one filed in this case, must be liberally construed to allow the development of potentially meritorious claims, the court may not rewrite the pleading to include claims that were never presented, Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir. 1998), develop the plaintiff's legal theories for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). At the same time, to achieve justice, the court may allow a pro se plaintiff the opportunity to amend his complaint in order to correct deficiencies in the pleading. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).

         Plaintiff alleges the following in his complaint:

1. That on April 27, 2019, he was incarcerated at the Western Regional Jail in Barboursville, West Virginia;
2. That same date, he observed another inmate being pushed and shoved by a correctional officer;
3. When he asked the officer for his name, the officer identified himself as Officer Hensley;
4. Officer Hensley then ordered Plaintiff on lockdown and pushed him into his cell;
5. Plaintiff suffered mental anguish due to the “excessive force.”

(ECF No. 2 at 4-8). Plaintiff requests $250, 000 in damages and asks that the defendants pay the filing fee. (Id. at 9). In response to a question contained in the form complaint about the steps Plaintiff has taken to exhaust administrative remedies, he indicates that he wrote a statement and filed a grievance, but the grievance remains undecided. (Id. at 3).

         The Prison Litigation Reform Act (“PLRA”) requires prisoners to exhaust administrative remedies prior to filing a complaint in federal court. 42 U.S.C. § 1997e(a) (“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.”); Porter v. Nussle, 534 U.S. 516, 524 (2002) (“Once within the discretion of the district court, exhaustion in cases covered by § 1997e(a) is now mandatory. All available remedies must now be exhausted; those remedies need not meet federal standards, nor must they be plain, speedy, and effective. Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit.”) (citations and internal quotation marks omitted). The purpose of the exhaustion requirement is twofold: first, “exhaustion protects administrative agency authority” by giving an agency “an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court … and it discourages disregard of the agency's procedures;” second, “exhaustion promotes efficiency, ” as claims “generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court” and sometimes “claims are settled at the administrative level, and in others, the proceedings before the agency convince the losing party not to pursue the matter in federal court.” Woodford v. Ngo, 548 U.S. 81, 89, (2006) (citations and internal quotation marks omitted). Further, “even where a controversy survives administrative review, exhaustion of the administrative procedure may produce a useful record for subsequent judicial consideration.” Id.

         The only exception to exhaustion is when administrative remedies are “unavailable” to an inmate. Ross v. Blake, 136 S.Ct. 1850, 1858 (2016). There are “three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief;” and thus is unavailable. Id. at 1859. First, “an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end-with officers unable or consistently unwilling to provide relief to aggrieved inmates.” Id. Second, an administrative process is likewise unavailable when it is “so opaque” that “no ordinary prisoner can discern or navigate it.” Id. Finally, an inmate need not exhaust administrative remedies when prison officials thwart the inmate's access to the grievance procedure “through machination, misrepresentation, or intimidation.” Id. at 1860. “[S]uch interference with an inmate's pursuit of relief renders the administrative process unavailable.” Id.

         Generally, exhaustion need not be alleged by the plaintiff, but is instead “an affirmative defense that should be pleaded or otherwise properly raised by the defendant.” Anderson v. XYZ Correctional Health Services, Inc., 407 F.3d 674, 681 (4th Cir. 2005). Nonetheless, the fact that exhaustion is an affirmative defense “does not foreclose in all cases the possibility of a sua sponte dismissal on exhaustion grounds.” Id. In the rare instance when the face of a complaint clearly demonstrates a prisoner's failure to exhaust administrative remedies, sua sponte dismissal on that ground is appropriate. Anderson, 407 F.3d at 682 (citing Nasim v. Warden, 64 F.3d 951 (4th Cir. 1995)). When exhaustion is not clear on the face of the complaint, a district court may still sua sponte raise that affirmative defense, but may not dismiss the complaint on that ground without first giving the plaintiff an opportunity to respond. Id. at 682-83.

         By his own report, Plaintiff has a grievance procedure available at his institution, which he has accessed. However, Plaintiff has not exhausted the available remedies, because he has not yet received a decision on his grievance. At the time Plaintiff submitted the instant complaint, only three days had passed from the date of the alleged use of excessive force. Clearly, that time period does not allow a sufficient opportunity for the correctional facility to consider Plaintiff's grievance, or for Plaintiff to progress through all of the steps of the facility's grievance procedure. Consequently, it is unlikely that Plaintiff has exhausted administrative remedies, and he has not demonstrated that such remedies are unavailable to him. As such, a lack of exhaustion may preclude his lawsuit at this time.

         In addition, as written, Plaintiff's complaint likely does not state a violation of constitutional law. Plaintiff alleges that Officer Hensley used excessive force when pushing Plaintiff into his cell. The Eighth Amendment to the United States Constitution “imposes duties on [prison] officials who must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must ‘take reasonable measures to guarantee the safety of the inmates.'” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). A prison official violates this constitutional mandate when he uses excessive force against a prisoner, Hudson v. McMillian,503 U.S. 1, 4 (1992). To establish a constitutional claim of excessive force, a plaintiff must show that a prison official “inflicted unnecessary and wanton pain and suffering.” Taylor v. McDuffie,155 F.3d 479, 483 (4th Cir. 1998) (quoting Whitley v. Albers,475 U.S. 312, 320, (1986)). There is a ...

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