Lamar William Jones Bey v. Kelly Johnson and Wayne Trierweiler

(c) The officer’s... conduct does not ED for proceedings further consistent with gross negligence amount to opinion. is the proximate injury cause of the or dam-

age.

Police officer defendants “can claim the

protection governmental immunity liability

tort unless were acting so

reckless a manner as to ‘gross constitute ” negligence.’ Cebreco v. Music Hall Ctr. Arts, Inc., Performing 219 Mich. (1996). App. 555 N.W.2d BEY, Lamar William Jones Gross negligence is defined the statute Plaintiff-Appellant, as: “conduct so reckless as to demonstrate a substantial lack of concern for whether injury an results.” Comp. Mich. L. Kelly Wayne JOHNSON 691.1407(7)(a); Jennings see also Trierweiler, Defendants- Southwood, 446 Mich. 521 N.W.2d Appellees. (1994) 230, 235 (recognizing gross neg statute). ligence standard delineated No. 03-2331.

Officer Dixon and Detective United Appeals, States Court of high Roberts did not reach this threshold. Sixth Circuit. Dixon was unaware of Garretson’s condi entirely, tion sought and Roberts medical Submitted: Dec. 2004. case, treatment for her. In either neither exhibited the lack of concern re April Decided and Filed: garding potential Garretson’s health and injury. Altobelli, Officer who

was informed at booking that Garretson insulin-dependent

was an diabetic who was

past treatment, due for potentially did ex conduct,

hibit culpable as did the unnamed

officer from whom requested Garretson

help being while holding taken to her cell.

Accordingly, Dixon and Roberts are enti protection

tled to the governmental of the

immunity statute while Altobelli and the

unnamed officer are not.

IV. CONCLUSION reasons,

For the foregoing the decision

of the district court regard to the

City, Department, the Police Officer Dixon

and Detective Roberts is AFFIRMED. regard

With to Officer Altobelli and the officer,

unnamed the decision of the dis-

trict court is REVERSED REMAND- Thurber,

ON BRIEF: John L. Office of General, Michigan, Attorney Lansing, Bey, Appellees. Lamar William Jones ous instances of misconduct one against alleging mishandling Munising, Michigan, Trierweiler pro se. grievances.

of these CLAY, SILER and Before: Circuit filed this action BERTELSMAN, Judge.* District Judges; in their capacity defendants individual July claiming that both defendants SILER, J., delivered the of the opinion violated rights, his First Amendment and court, BERTELSMAN, J., in which D. that Eighth Johnson violated his joined. right Amendment to be free from use force. excessive The district court re- CLAY, 809-14), J. (pp. delivered ferred case to a magistrate judge. this opinion and separate concurring part magistrate judge The recommended that dissenting part. summary judgment granted to the de- Bey fully fendants Jones because had not OPINION his exhausted remedies SILER, Judge. Circuit required by Litigation the Prison Reform (“PLRA”), Lamar Bey ap- Plaintiff William Jones Act 42 U.S.C. 1997e. Alter- an peals magistrate from order entered the United natively, judge stated that Bey District Court for Dis- even if had ad- States the Western Jones exhausted his remedies, of Michigan, granting summary judg- trict ministrative none of his claims was summary judg- sufficient survive Kelly ment to defendants Johnson ment. district adopted The re- Wayne dismissing Trierweiler and port granted and recommendation and prejudice Bey’s Eighth Jones First and judg- defendants’ motion for summary to 42 brought pursuant Amendment ment.1 Bey 1983. U.S.C. Because Jones did not remedies, exhaust fully his administrative History B. Factual

we REVERSE and REMAND this case to Against 1. petition the district court to dismiss his Claims Defendant John- prejudice. son Bey alleges Jones October that I. arbitrarily “yard,” he was refused his his exercise in the prison yard. time to History A. Procedural Bey that Johnson claims Jones was Bey Alger Jones is a at the cell, fully when she dressed came his Correctional Facility Maximum Muns- therefore, and, he was not entitled to leave ing, Michigan. Johnson is a at the guard Bey grievance his cell. Jones filed a over facility, prison’s and Trierweiler incident, in this accordance with the Michi- grievance coordinator. October Between gan Department three-step of Corrections’ April 2001 and filed nine Bey grievance Jones It all procedure.2 was denied at grievances against alleging vari- steps. Johnson three * Bertelsman, jurisdiction Honorable United The William O. mental over this claim. See Unit- Gibbs, Judge District States for the Eastern District ed 383 U.S. Mine Workers (1966). Kentucky, sitting by designation. 86 S.Ct. Bey 1. Jones also set forth a Michigan Department Michigan ethnic intimidation state law. of Corrections under require regulations the district all of Because court dismissed first file supple- grievance grievance federal it declined to exercise with the internal coordi- Bey’s ap- had grievance, initial director not received Jones After this Jones grievance. peal on in a engaged Bey contends Johnson him. retaliatory acts series an- Bey In December Jones filed Bey’s cell allegedly came Jones her grievance against Johnson Johnson for other lan- said, derogatory use of racial slurs “you grievances to write like af- He attached guage. again handwritten me and huh? You know the counselor from other who claim fidavits him I’m to see if I can have going related. This have overheard these comments. pressure you you up on some to break put exhausted, but grievance was filed habit.”3 had determined that these claims concerning this statement which already at local level” been addressed “the III, through Step claims appealed he was grievances Bey’s in Jones earlier filed the record shows the director’s but against Johnson. grievance. never received the office major day, the Johnson filed a On same days Bey contends that five Jones against Bey alleg- Jones report misconduct (staff-victim).” later, Battery “Assault and yard on period, while he was out his report alleged that in the course Johnson’s searched, down,” his Johnson “shook cell, returning Bey spun to his he Jones cell, Bey Jones returned to his cell. When body and swung his around Johnson’s possessions in disar- allegedly he found his against the food as she was hands slot pages torn out of of his Islam- ray and two handcuffs, trying resulting to remove his Bey Jones confronted ic books. When pain hands. in some redness and in her issue, used allegedly on the she Johnson however, Bey, she Jones claimed that griev- slurs told him to a racial write tightly she handcuffed him too and that file a complaints. ance about his He did on hands pulled forcing the handcuffs his Johnson, against complaining grievance the He that he against food slot. claims about of racial both the search and the use of this pain” suffered “extreme a result He attached handwritten affidavits slurs. altercation, X-ray no bro- but an showed claiming two other later, days Bey ken bones. Three Jones tearing heard sounds of paper the grievance against alleging filed a Johnson flushing and the toilet when was Johnson major the misconduct that Johnson filed Bey’s this searching Again, Jones cell. griev- for report retaliation all of the through Step grievance appealed was not additionally ances he filed her. He Bey III. a to the di- Jones sent letter alleges that fabricated the mis- Johnson concerning grievance, this rector’s office report in order conceal her conduct the he alleged January the return letter indicated that misconduct.4 but prison at both nator in which he is incarcerat- dant Johnson denies that she is related level, grievance ed. is denied at this If this to Robert Johnson and that she made prisoner appeal prison's it to the warden. can statement. time, prisoner a can If denied second appeal exercise final to the office of involving major reports 4. Issues misconduct Michigan di- Department of Corrections' grievable, presumably because Policy rector. See MDOC Directive hearing misconduct should settle all undertaken 03.02.130. Once has alleged relevant misconduct. Jones steps, grievance all three of these his is con- alleges Bey major mis- that Johnson filed a sidered exhausted. report preclude conduct in order to him from grievance. filing a her Because Johnson filed Apparently grievance is a counselor there misconduct Jones could file before Defen- named Robert Johnson. Machulis, (6th wrong doing against cleared of all was 478-79 Cir. 1995). Furthermore, an independent hearing Johnson after on we review- the dis major trict charge. misconduct court’s exhaustion determination in a Scott, Curry case de novo. Bey alleges Jones that after he was Cir.2001). misconduct, acquitted major of the John- Bey’s Because Jones complaint alleged threatening son made “get- remarks about both exhausted and unexhausted ting put him in a segregation even” definitively we must open answer an ques- yard as retaliation. He filed and exhaust- tion in this circuit: whether the PLRA ed a respect to this claim. requires a complete dismissal of prison- He also grievance against filed another her complaint er’s when that alleges alleged use of more racial slurs. This both exhausted and unexhausted claims. grievance, too, was denied at all three We hold that it does. stages. Finally, Bey alleges in his complaint that an officer named Zimmer- requires The PLRA that a pris man “shook down” his cell and confiscated oner must exhaust administrative remedies some of legal papers on Johnson’s or- before suit the district court. It ders. was never states: “No action brought shall be grieved. allega- Johnson denies all of the respect prison conditions under section her, against tions claiming that she never title, of law, 1983 this or other Federal made intimidating statements or retaliated by any jail, confined in prison, against Bey in any way. Jones facility or other correctional until such ad ministrative remedies as are available are Against

2. Claims Defendant Trier- 1997e(a) (2004). 42 exhausted.” U.S.C. weiler plaintiff-prisoner has the burden of Bey’s only Jones against proving grievance claim that a Trier- has been exhausted, Rose, 486, weiler stems from Baxter v. alleged Trierweiler’s 305 F.3d (6th Cir.2002), 488 mishandling grievances by filed and the must Jones attach Bey. Bey complaint Jones documentation to the states that Trierweiler Toombs, proof. 1102, Brown v. arbitrarily rejected or 139 F.3d griev- denied his (6th Cir.1998). 1104 Exhaustion unclear, ances because is not were not con- cise, jurisdictional; it mandatory, Wyatt is v. information, contained extraneous or (6th Leonard, 876, Cir.1999), 193 F.3d 879 non-grievable already related to grieved if proceeding through even the administra issues. He claims that Trierweiler did system tive would be “futile.” not follow the Policy Prisoner’s Grievance Hartsfield Vidor, (6th 305, v. F.3d 199 308-10 Cir. set forth the Michigan Department of 1999). Corrections. this When reached III, Step the director noted that even if Although the PLRA’s exhaustion I,

Trierweiler a grievance denied at Step requirement clearly mandatory as to Bey always Jones appealed could have claim, specifically each individual we have complaints Steps II and III. left unanswered question of whether requirement ap the PLRA’s exhaustion

II. plies complaint, such that a “mixed” alleg grant We review the district court’s both exhausted and unexhausted summary judgment Copeland de novo. completely must be dismissed for grievance, position hearing. had no choice but to defend his at the 14087, 2000 U.S.App. remedies. LEXIS WL failure to exhaust 2000). Toombs, (6th El v. Cir. June Knuckles at *6 See Cir.2000) (“We (6th another reserve to without from this Acting guidance clear exhausted question of whether day court, circuit the district courts this complaint a ‘mixed’ should claims in requires on whether split claims otherwise when such addressed involving in cases “mixed” com or wheth- pleading requirements meet Thakur, Compare v. plaints. Hubbard dismissed in should be er such (E.D.Mich.2004) F.Supp.2d 558-59 entirety.”). its rule); Alexan (rejecting total exhaustion addressing PLRA exhaustion Our cases Davis, F.Supp.2d der v. At least one inconsistent. are somewhat (W.D.Mich.2003) (same); v. and Jenkins prior suggests of this court’s decisions (W.D.Mich. Toombs, F.Supp.2d under total exhaustion 1999) (same); with v. Over Chamberlain 309-10, Hartsfield, PLRA. In 199 F.3d (E.D.Mich. ton, misconduct plaintiffs complaint alleged 2004) exhaustion); (applying total however, officials; plain five Hook, Smeltzer rem tiff exhausted his administrative (W.D.Mich.2002)(same). Similarly, split three edies defendants. Without among the other circuits that exists have exhaustion, addressing the issue of total Compare Ross v. addressed issue. claims could be we held exhausted Bernalillo, County on the while the unex- addressed merits (10th Cir.2004) exhaustion); (applying total could hausted claims be dismissed Harmon, Kozohorsky v. Id. This has been prejudice. procedure Cir.2003) Norris, (same);5 and Graves opin unpublished followed in some our (8th Cir.2000) (same); 218 F.3d 884 McGinnis, v. 234 F.3d ions. See Williams (2d McBride, v. 380 F.3d 649 Cir. Ortiz (6th 1271, 1679471, at *2 Cir. 2000 WL 2004) exhaustion). (rejecting total We now 2000) Nov.11, decision); (unpublished table in hold join Eighth the Tenth and Circuits Elo, 1358, 2000 McElhaney v. 230 F.3d that total under (6th Cir.2000) 1477498, (unpub at *3 WL the PLRA. Rout, decision); v. 215 lished table Wash suggests going con- The dissent we (6th 1328, 658925, *1 2000 WL at Cir. refusing to trary by to stare decisis follow 2000) case); 10, (unpublished table May out in 199 F.3d Hartsfield, a rule set at Richards, 332013, *2 at Riley v. 2000 WL Although that follows 310. decision (6th 2000) Mar.23, (unpublished table Cir. principle application, in it does not discuss case). However, unpublished deci other Perhaps exhaustion. total/partial issue affirmed of dis sions have the decisions by raised in that parties was not case. requiring trict courts total exhaustion. See repudiating never Hakola, 585, suggest We would Fed.Appx. 587 Bomer decision, (6th Jones, prior in a the author Cir.2003); holding but Fed. Kemp v. Cir.2002); also v. of the decision was Mack Appx. Hartsfield (6th Cir.2002); DeWitt, decision in Fed.Appx. subsequent author of Inc., El, Entry, v. Unibase Data Knuckles F.3d at which this Overholt clearly Eighth Kozohorsky ohorsky contends that case indicates 5. Jones effectively v. Nonis. Circuit abides the total exhaustion rule. case overrules Graves Kozohorsky, allegation-which Alexan- at it was taken from 1143. This Davis, plaintiff complaint allowed the to cure his der (W.D.Mich.2003)-is deleting The unexhausted claims. Id. without merit. Koz- day” prisoner for another and allow the “reserve[d] to re-file ex- claims. very question. Id. The author of the dis- hausted sent herein was also a member of the policies underlying the PLRA Moreover, panel that decided Knuckles El. suggest Congress intended the clear, if the decision in was it so Hartsfield apply courts to total pris exhaustion to a strange why panels other of this court petition. purpose oner’s One of the act is and district courts in this Circuit have not to reduce the sheer prisoner number of always followed it. suits, especially frivolous actions. See Or tiz, 380 F.3d (citing at 658 141 Cong. Rec. adopt rule, We the total exhaustion (1995)) 26,553 (statement Hatch). of Sen. large part, plain because the language of Congress also intended give increased the statute dictates such a result. Section powers prisons so that they could solve 1997e(a) states that no “action” shall be problems their according to their own in brought in federal court until administra- dispute ternal systems. resolution See Al tive remedies have been exhausted. How- Hawk, exander v. 1326 n. ever, (c), in subsection the statute allows (11th Cir.1998) (citing 141 Cong. Rec. district courts to dismiss frivolous “ac- S417748) S14408-01, 1995). (Sept. “In 1997e(c)(l) tions” or “claims.” 42 U.S.C. context, the PLRA a total exhaustion rule (2). Congress’s & use of the word encourage prisoners would to make full (c)(2) “claims” subsection indicates that use of inmate procedures and allegations “claims” are individual and “ac- give prison thus opportunity officials the Ross, tions” are entire lawsuits. See Ross, resolve complaints.” (“To start, F.3d at 1190 language F.3d at 1190. When the courts dismiss the 1997(a) suggests itself a requirement of actions without prejudice, prisons would prohibits exhaustion because it an have opportunity resolve the (as opposed merely ‘action’ preventing a complaint. If the cannot be re ‘claim’) proceeding until administra- solved within prison, could exhausted.”); tive remedies are see also file an action in court complete with a Smeltzer, at 744. “administrative record that ulti .would mately assist federal courts in addressing Furthermore, (a) reading subsection and Id.; prisoner’s claims.” see also Riv (c)(2) subsection together demonstrate Whitman, era v. F.Supp.2d 341- Congress intended for “action” to mean (D.N.J.2001). “suit.” If a presented district court is with petition, a “mixed” it power has the under Additionally, adopting the total exhaus- (c)(2) subsection to dismiss frivolous § tion comity rule creates between claims, not, exhausted or prejudice. claims and corpus habeas claims. The Su- (a) dismissal under subsection preme requires Court total exhaustion in allows court to dismiss the entire ac- habeas cases to allow state courts the first tion prejudice. The Smeltzer opportunity to prisoners’ solve cases be- court recognized Congress must have they arguably cause are in a posi- better intended that courts could use subsection analyze tion to problems. and solve the (c)(2) to dismiss unexhausted claims as Rodriguez, See Preiser v. 411 U.S. keep frivolous to them “holding up” (1973). from 93 S.Ct. Smeltzer, the others. at PLRA, too, was enacted to allow state alternative, 744. In the systems court could prison the first chance to solve dismiss the entire action without prejudice problems relating to conditions. Ross, prisoner created at A law were See

Because both bodies reasons, their exhaustion rules mixed was dismissed for similar whose in a manner.6 similar be two interpreted should the district court would left with First, all of options. he could wait until not the total applied which have Courts exhausted re-file the are and little claim that there is exhaustion rule Or, simply at he action that time. could petitions habeas and similarity between an exhausted institute action with These note that § 1983 actions. courts claims, bring and actions then later other required in the habeas exhaustion in court after the other have been issues sovereignty. out a need for state context through griev- the prison addressed Jenkins, Ortiz, 660; at F.3d See it is re- process. ance While true that However, these courts F.Supp.2d at 957. filing require an action would an additional courts that while state recognize fail fee, reject we the notion that cases, habeas resolving have an interest in “unduly punitive,” rule is because it does prison systems have a similar inter- state prevent proceeding from prisoner involving their own resolving est cases pauperis. Contra Jenkins not- already institutions. This circuit has forma Toombs, 32 at 959. Under peti- between habeas ed the similarities rule, total exhaustion will have § claims. -In Brown v. tions of bringing the choice forth each exhausted Toombs, “The has ex- [PLRA] we noted: time, at potentially great- claim one at a recognizes that it is tensive It benefits. himself, expense bring er or wait and why full explain require difficult to we together all exhausted claims in one action. corpus involv- exhaustion in habeas cases liberty, life and but access ing allow direct Furthermore, reject we notion that § prison rights cases under 1983.” the total exhaustion rule would create ad- recognize 1103. Because we fewer, ditional, rather than law- petitions correlation between habeas (not- Ortiz, suits. Contra at 658 actions, it appropriate we find regimen that “such a would an create interpret require- prisoners incentive for file section rules.7 light corpus ments of habeas one, if more than in more have lawsuit”). than one Even the Adoption of total exhaustion Ortiz recognized significant proce- rule would also deter that there additional, bringing piecemeal litigation. place encourage dural rules in that would - Dotson, drawing compar- 6. The cites Wilkinson v. 7. The dissent notes that dissent -, -, U.S. corpus isons between habeas (2005), cor L.Ed.2d 253 to show that habeas light inappropriate cases is in of the recent § pus “inherently and cases are differ 1983 -Weber, -, case of Rhines v. U.S. 125 quotes corpus ent.” It that "habeas actions (2005). S.Ct. L.Ed.2d In 440 require petitioner fully a to state rem exhaust Rhines, that, the Court held in certain circum- § edies does While this which not.” Id. stances, may stay a court a district habeas true, required statement is exhaustion is still prisoner's until case all of the claims are cases, prisoner only § in the exhaustion did exhausted. Id. at 1535-36. This case prison system. must Fur occur within the not, however, "total eliminate lessen the thermore, of habeas the Court's discussion requirement. exhaustion” Id. at 1533. Be- corpus suggest § not and does dealing cause we are with not a case in which drawing comparisons the two cases between stayed proceedings the district court procedures inappropriate, is that exhaustion, pending we decline to address the hearing types of were created for distinct § applicability claims. Id. at 1246-49. of Rhines 1983 cases. action, above, all one exhausted claims in -For reasons stated we bringing filing separate adopt than actions for each now the total rather exhaustion rule and we claim. at n. 7. The and REMAND individual See id. REVERSE this case peti district to dismiss filing Bey’s deterrent is the fee. Jones most obvious rule, prejudice.9 tion codified “three strikes” § 1915(g), in an addition- 28 U.S.C. creates CLAY, Judge, concurring part Circuit in join al all their incentive dissenting in part. one

issues in action.8 in join, part, I ulti- majority’s While mate conclusion that Jones-Bey’s First Finally, we believe that the total exhaus- Amendment retaliation claim De- easily by could be tion rule administered fendant must be with- Johnson dismissed Ross, the district courts. As noted in this prejudice out for failure to exhaust ad- rule “would relieve district courts of the I ministrative remedies believe that duty to determine whether certain ex- majority’s attempt failed apply a claims are from other hausted severable by prior exhaustion rule is foreclosed our that unexhausted claims Vidor, decision in Hartsfield (citing to dismiss.” F.3d at 1190 Rose (6th Cir.1999). I Although respectful- Lundy, U.S. ly dissent from the holding exhaustion (1982)). 1198, 71 L.Ed.2d 379 The district my by colleagues, reached I am not sure simply apply courts would the familiar rule actually necessary that a is dissent be- § from the habeas context to 1983 claims. majority’s cause decision constitutes Furthermore, prisoners who are well ac- nullity extent to the that it conflicts with quainted this rule in the habeas con- Hartsfield. expected text should “be to this adhere

straightforward requirement” Hartsfield, exhaustion this Court ex- confronted actly in the 1983 context. Id. situation to- the same that we face statute, Cir.2004). (6lh Boyd prisoner prisoner 8. Under who files an in paupris a "strike” if action receives grievance, that submitted evidence he filed a forma “frivolous, malicious, is the action or fails to appro- that the was delivered to the upon may grant- claim state a which relief be office, priate and that the did not officials prisoner Id. Once the ed.” accrues three rule, respond. Even under this Id. Jones "strikes,” pro- barred that he cannot show exhausted his adminis- ceeding pauperis additional forma Although presents evi- trative remedies. he Although action. is not process dence he started even court, totally barred from claims in he inquiring wrote letters on the status his expense. do so at must now own his grievances, proven griev- he has not Bey alternatively argues 9. Jones that he did appropriately cor- ance was delivered to the remedies, his exhaust administrative but his Thus, Bey's rect Jones office. case can attempts at exhaustion were frustrated plaintiff distinguished Boyd. from the Although Twierweiler. is manda- Furthermore, Bey’s on reliance Woolum, tory, Thomas v. see Woolum, (6th Cir. Thomas v. 337 F.3d 720 (6th Cir.2003), prison do officials 2003), misplaced. pris requires Thomas affirmatively provide have to on information remedies, oner to exhaust proceed how to with individual claims. timely. longer even if remedies are no those County, v. Kenton Brock 2004 WL As evidenced Id. at 727. his brief Mar.23, 2004). (6th *3 Cir. grievances, some other he of his understood recently held We that when a "total- claims, including exhaust the need to futile ly respond grievance,” to to that fail[s] [a] reasons, untimely. those that were For these grievance should be for considered exhausted prove 1997e(a). cannot that purposes Boyd of v. Correc- the America, 989, Corporation F.3d unavailable tions 380 remedies were to him. incorrectly thus it described the state of opposite reached the conclusion. day- and in filed a in The prisoner-plaintiff PLRA exhaustion this Circuit. The Hartsfield against mul- various claims complaint with El claimed to leave question Knuckles defendants, of which ex- all; were tiple some open open question not an at it was were and some of which not. We hausted already had in been answered Hartsfield. claims unexhausted must be held Furthermore, was because de- Hartsfield however, dismissed; permitted we the ex- first, subsequent required are panels cided forward and be claims move hausted 206(c), it under 6TH R. follow CIR. Id. on the merits. at 309. resolved panel that “[Reported which mandates in binding opinion this Cir- Hartsfield binding subsequent panels. on opinions are correctly cuit, has in a and it been cited Thus, subsequent panel overrules a no decisions as unpublished of our number published opinion previous panel. of a ex- holding “[if] that contains Court en banc consideration is and unexhausted the dis- hausted of the published opinion overrule a court.” may the the trict court address merits of Davis, 340, v. F.3d See United States those exhausted and dismiss Cir.2005) (6th 206(c)); (citing n. Rule v. that are unexhausted.” Williams Francis, 1032, v. 270 F.3d Valentine McGinnis, 234 F.3d 2000 WL (6th Cir.2001) (same). Because we are (6th Cir.2000) **2 (citing at Harts until by bound unless and Hartsfield 309); field, at accord v. F.3d Fisher otherwise, majori- en court holds banc Wickstrom, 2000 WL ty’s opinion contrary controlling is not (6th Cir.2000); McElhaney *1 1477232 at Circuit, in law and should not the Sixth Elo, 230 F.3d 2000 WL 1477498 panels by followed future of this Court. (6th Cir.2000); Rout, **3 Wash majority feebly attempts The to disclaim (6th Cir.2000); at *1 2000 WL 658925 precedential by value Richards, Hartsfield Riley v. 2000 WL noting the same authored judge that both (6th Cir.2000). Additionally, at *2 El, that I and Knuckles sat that argue if one were to Hartsfield even Hartsfield however, panel; on the Knuckles El these partial expressly did not hold that ex consequence facts of no whatsoever. applies, panel rule haustion Hartsfield Regardless panel of its author or member could have indisputably decided ship, it is clear Knuckles El incorrect if way it case did exhaus ly the state construed of exhaustion law Thus, required. defin tion was Hartsfield ignoring prece improperly Court itively of the to application foreclosed the addition, majority’s sugges dent. rule in this Circuit. tal exhaustion tion that was unclear under Hartsfield majority completely ignores Harts- panels the fact that numerous mined import, relying ’s instead on our sub- field properly construed both before Toombs, Hartsfield El v. sequent opinion in Knuckles Knuckles after the issuance of El. purported “reserve an- in which we See, Williams, (de e.g., 2000 WL day” the ex- question other whether Fisher, El); cided Knuckles after complaint may hausted claims a ‘mixed’ (same); McElhaney, 2000 WL 1477232 move forward. See 215 F.3d (same); Wash, 2000 Cir.2000). WL 1477498 WL majority’s reli- (decided El); before Knuckles Ri misplaced; ance on Knuckles El is Knuck- (same).1 Hartsfield, ley, Instead of El failed even cite to 2000 WL les Furthermore, majority author of the Wash. opinion panel on the in the instant case sat Co., acknowledging 479, that Knuckles El 501, mistaken- Trust 927, U.S. 118 S.Ct. ly precedent, majority overlooked the con- (1998), L.Ed.2d under a total exhaus repeat demns itself to by mistake once regime tion application of a consistent again misconstruing 1997e(a) meaning to § Hartsfield. “action” in (c)(1) (c)(2) renders subsection superfluous. Notwithstanding major- the fact that the 1997e(e)(l) Section states that a court shall ity’s holding ignores principle of stare any “dismiss brought action ... if the decisis, its reliance on the lan- PLRA’s court is satisfied that the action is frivo guage apply the total exhaustion rule is lous, malicious,” etc., 1997e(c)(2) § while unpersuasive. While it is that true states that is, the event “[i]n that a claim 1997e(a) § states that no “action” shall be face, frivolous, malicious,” on etc., its “the brought “claim,” opposed to no “it [does may underlying dismiss the claim not] that possible follow[ ] re- without first requiring the exhaustion of sponse impermissibility to the of the bring- remedies.” order to ing of be the action is to dismiss it its consistent, a entirety- to kill it than court “would rather to cure it.” be McBride, (2d 649, Ortiz v. prisoner’s dismiss a complaint [un entire Cir.2004). 1997e(a) § The (c)(1) text of far is der subsection if] of the claims “ ‘too ambiguous’ to sustain the conclusion therein were found to be frivolous or insuf Congress that intended” for a total ex- ficient justify relief.” Jenkins haustion rule to applied. Id at 657-58 Toombs, (W.D.Mich. 955, (quoting Lundy, Rose v. 455 U.S. 1999). However, (c)(1) if subsection re (1982)); see quires dismissal of an action for frivolous Sebastian, also Henderson v. No. 04-C- ness, (c)(2)’s then subsection reference to 0039-C, (W.D.Wis. 2004 WL at *6 dismissal of frivolous claims would be en 2004) Aug.25, Davis, (quoting Alexander v. Id.; tirely unnecessary. accord Hubbard (W.D.Mich.2003)) Thakur, 344 F.Supp.2d 555-56 (noting that “courts have characterized (E.D.Mich.2004). linguistic interpretation as a ‘thin reed’ on which to base such a weighty Because statutory language does not conclusion”). It precisely because of unambiguously exhaustion, require total this ambiguity that the majority must nec- majority turns its discussion to the essarily perform a gymnastic interpreta- purposes behind the PLRA. It is undisput- tion of other subsections of the statute 1997e(a) ed “Congress § enacted order to reach its Congress conclusion that reduce the quantity improve, quali- “intended” total exhaustion. ty Nussle, of prisoner suits.” Porter v. 516, 524, 534 U.S. 122 S.Ct. 1997e(c) majority’s discussion of (2002). However, L.Ed.2d purposes entirely unhelpful, inasmuch as that sec underlying the statute are better served appears tion to use the term ‘action’“inter ” by a partial exhaustion rule than changeably Henderson, with ‘claim.’ total exhaustion rule advocated the ma- 2004 WL 1946398 at *6. Additionally, ap jority. danger There is a than rather plying statutory the tenet of construction filed, lessening the number of suits “that similar language contained within the piece- exhaustion rule will increase same statute must be accorded a consis tent meal. meaning,” litigation by encouraging National Credit Union Ad ministration v. First National Bank Ortiz, file additional 1983 lawsuits. See

812 pres- often prisoners’ that it has noted that suits (holding is “doubt- F.3d at 658 380 than that dismissing challenging questions actions rather ent exhaustion ful” that litiga- do more than re- the claims “will must resolved at outset of individual ‘mixed’ bring tion, actions plaintiffs who the court ulti- quire regardless of whether that their claims with claims to refile mately partial a total or a exhaus- applies court to be unex- were held the district situations, tion In such “the district rule. omitted.”). simply In other hausted first itself with the court must familiarize words, likely to “prisoners simply are parties positions case hear the of and to eliminate the complaints their amend the exhaustion issue order to decide refile,” leaving claims and unexhausted Ortiz, matter.” 380 F.3d at preliminary exactly court the same district “with expended district has 659. Once the at the that could have been resolved claims determining time whether claims have Toombs, 32 Jenkins v. outset.” hardly to aid “[i]t been exhausted seems (W.D.Mich.1999). 955, Consequently, 959 require that ... it must dis- efficiency to rule is effi- exhaustion more partial remaining claims any miss exhausted cient, pur- in line with the and thus more case, to same the unex- allow the absent PLRA, total than the exhaus- poses of reinstituted, hausted to be heard to majority adopt. seeks tion rule issues, and then again on the exhausted addition, regardless of whether total or again, partial Id. Once exhaus- decided.” prisoners are applied, exhaustion is partial approach. tion is the more efficient to fully exhaust still Additionally, comparison the majority’s court, federal press wish rights litigation of civil habeas clearly courts are barred from re- district corpus light completely inappropriate any grievances which have not solving precedent. Supreme of clear Court officials. See prison submitted to been 731, principally Whereas habeas exhaustion “is Churner, v. 532 U.S. S.Ct. Booth (2001); designed role in protect state courts’ 1819, Curry v. 149 L.Ed.2d 958 (6th Scott, 493, Cir.2001); prevent of federal law and see enforcement (“[A] Ortiz, judicial per disruption proceedings,” at 661 rule of state of unexhausted mitting parallel dismissal no such exists in the con Rose, to state adminis claims does indeed defer text. 455 U.S. at S.Ct. insisting proceedings by 1198; trative Rodriguez, also Preiser v. see prisoner’s each adjudicate administrators U.S. 93 S.Ct. 36 L.Ed.2d instance.”). first section 1983 claim in the (1973) (“The rule of in fed exhaustion already have an incen Finally, prisoners corpus eral is rooted in habeas actions lawsuits multiple tive not file because comity.”). considerations federal-state and 28 multiple fees U.S.C. Supreme repeatedly Court has con rule, § which bars 1915(g)’s‘three strikes’ distinguished habeas actions trasted three previous who filed has actions, very recently noting from 1983 proceed suits from frivolous meritless peti corpus require actions “habeas subsequent pawperis suits. informa tioner exhaust state remedies Yaklich, v. See Wilson does not.” v. which See Wilkinson Cir.1998). — Dotson, -, -, 125 S.Ct. U.S. (2005) 1242, 1246, (citing L.Ed.2d Further claim that rebutting the 475, 490-91, Rodriguez, Preiser U.S. spares courts from de- district (1973); Pat termining which claims are exhausted 496, 507, 102 unexhausted, sy Regents, the Second Circuit Bd. U.S. which (1982)); unlikely to the sort of highly see are create 73 L.Ed.2d S.Ct. Bálisok, 641, complete contemplated by v. 520 U.S. factual record also Edwards 137 L.Ed.2d 906 117 S.Ct. fur- majority. One need not look (1997); 512 U.S. Humphrey, Heck v. than the record in this case: ther 480-81, 114 S.Ct. Jones-Bey fully individual issues (1994). Wilkinson, found the Court grieved prison present with officials do not habeas, comity- which has clear that unlike a than better administrative record petitioner press a to require concerns that only grieved through step ones that he court, §in her claims in state his or one; fully grieved complaint, for each need to vindicate fed- competing suits “the merely three step record of review consists allows rights without exhaustion” eral brief, conclusory indicating of statements bring their claims without “prisoners [to] steps that the review at one and two ade- fully exhausting state-court remedies.” quately problem, addressed the and that gen- the PLRA’s Id. The Court also noted prison policy had not been violated and/or state administrative requirement eral Jones-Bey presented grievable did not a exhausted, however, it is clear remedies be claim. These statements have been entire- discussion of 1983 and from Wilkinson’s case, ly unhelpful reviewing this types that these two of actions are habeas way they comparable no to a state (dis- Id. at 1246-49 inherently different. court decision. of from Preiser to Ed- cussing line cases distinguished majority’s flimsy comparison in which the Court of ha- wards The suits). from 1983 The rights litigation habeas actions civil beas and majority’s attempt parallels to draw be- also dubious when one considers that habe- entirely tween the and habeas usually singular “are petitions about completely unsupportable misplaced petitioner’s event the conviction state Supreme precedent.2 under clear Court Ortiz, By court.” 380 F.3d at 661. con- trast, prisoner rights “routinely civil suits Furthermore, courts unlike the state more than one seek to address “prison ad- petitions, that review habeas laundry grievances re- sometimes a list of limit their review to generally ministrators or circum- lating to different events determining prison policy whether has Id.; Jenkins, stances.” see also Jenkins, been violated.” prisoner- (noting at 959 660). Ortiz, F.3d at (quoted allegations plaintiffs “range claims equipped Prison officials are not to review against Jew- general discrimination black claims, and unlike state complex legal handling of his improper ish proceedings, prison administrative food”). case, example, In the instant grievances is not conducted un- review Jones-Bey that Defendant Johnson claims judicial the rules of evidence or other der him for repeatedly against retaliated exer- “employed by courts of law in procedures rights, Amendment and on cising his First attempt accurate fact-find- an assure Ortiz, against excessive force one occasion used ing.” 380 F.3d at 660. For those Amendment; reasons, Eighth him in violation of the proceedings petition, a federal Notwithstanding my a "mixed” habeas belief that habeas ex- stay extremely poor analogy district court has limited discretion provides haustion an exhaustion, petitioner’s while he or she exhausted claims to PLRA it should be noted that in case, claims in state recently Supreme exhausts the unexhausted another decided Weber, - U.S. -, exhaustion rule of court. See Rhines Court modified the total (2005). Lundy 161 L.Ed.2d to hold that when confronted Rose however, Jones-Bey monetary penalty, likely to a it is also also has an unrelated that Defendant Trierweiler alleging claim be a convenient means for district courts grievances. mishandled some of expediently close the courthouse door to and Trierweiler are Johnson litigants, proper pro se event, singular related about for the merits of their claims or regard events, majority and the has not series of their consideration status. See Estelle reason to ex- presented compelling Gamble, 97, 106, 429 U.S. S.Ct. why the failure to exhaust the claims plain (1976) (quoting 50 L.Ed.2d 251 Haines v. requires the against Johnson dismissal Kerner, 519, 520-21, U.S. against

the exhausted claim Trierweiler. (1972)) (“[A] pro com se plaint, inartfully pleaded,’ must ‘however majority’s I Finally, disagree with the stringent than be held to ‘less standards that total is not un- conclusion ”); may pleadings by lawyers.’ formal drafted duly punitive prisoners because still Jones, pauperis. in Title 28 proceed Burton v. Cir. forma 1915(b)(1) 2003) (“A requires prisoners fil- pro U.S.C. handwritten se pauperis “pay construed.”); full liberally should be FED. R. forma filing 8(f) (“All amount of a fee” to refile exhausted pleadings CIV. P. shall be so claims; thus, possibility pro- despite justice.”). construed as to do substantial ceeding pauperis, requiring forma “ Because the total exhaustion rule direct- may to refile still ‘amount to ly prior, published opin- conflicts with our nothing monetary penalty more than a ” Hartsfield, I respectfully ion dissent prisoner.’ against Blackmon v. majority’s attempt adopt failed Crawford, F.Supp.2d Moreover, a rule. such the total exhaus- (D.Nev.2004) Gardner, (quoting Scott v. ill-advised, tion rule is and it fails to serve (S.D.N.Y.2003)); F.Supp.2d efficiency purposes behind Jenkins, see also at 959. partial as well the exhaustion rule. How- may “Although prove additional fees ever, Jones-Bey because failed to exhaust bringing peti- disincentive from mixed relating to his administrative remedies theory,” likely tion in it is that “such incen- First Amendment retaliation claim many tives will have little effect because Johnson, I ma- agree Defendant prisoners do not understand the exhaus- jority claim should be dismissed Blackmon, place.” tion rule in the first prejudice. Further, the ma- jority’s suggestion prisoners engage analysis a conscious cost-benefit bring

“choice” of when to exhausted claims most, many, the fact that if not belied

pro prisoners se have little or no edu-

cation, understanding resources or of com-

plex legal principles such as the exhaustion (noting administrative remedies. id.Cf “pro se cannot be held to consequences

understand of the ‘total

exhaustion’ rule when the federal courts widely split

are so on whether or not it LABOJEWSKI, Petitioner, Rafal J. even the total ex- applies”). practice, haustion likely rule is not to amount

Case Details

Case Name: Lamar William Jones Bey v. Kelly Johnson and Wayne Trierweiler

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Apr 27, 2005

Citation: 407 F.3d 801

Docket Number: 03-2331

Court Abbreviation: 6th Cir.