Filed: Mar. 18, 2010
Latest Update: Mar. 02, 2020
Summary: 2, We need not address Johnson's contention that Thyng, interfered with his filing of his level two grievance with the, warden.grievance process., 2002) (holding that inmate must exhaust administrative remedies at, the first prison facility even if transferred to a different, facility).
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 09-1701
GARY DEWAYNE JOHNSON,
Plaintiff, Appellant,
v.
ROBERT THYNG, Unit Manager, NNHCF,
in his individual and official capacities,
Defendant, Appellee,
____________________
ANGELA POULIN, Law Librarian, NNHCF,
in her individual and official capacities, et al.,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Torruella, Selya and Boudin,
Circuit Judges.
Gary Dewayne Johnson on brief pro se.
Michael A. Delaney, Attorney General, and Danielle L. Pacik,
Assistant Attorney General, on brief for appellee.
March 18, 2010
Per Curiam. Gary Dewayne Johnson appeals a district
court judgment that determined that the Prisoner Litigation Reform
Act ("PLRA"), 42 U.S.C. § 1997e(a), barred his 42 U.S.C. § 1983
claim against prison officer, Robert Thyng, because Johnson had
failed to exhaust all of his administrative remedies. We affirm.
I.
In 2007, Johnson was incarcerated at New Hampshire's
Northern Correctional Facility ("NCF"). That facility has a three
level grievance process, each level corresponding to review by an
increasingly higher office in the chain of command. The first
level of grievance is to the inmate's Unit Manager; the second
level is to the Warden; and the third level is to the Commissioner.
On May 31, Johnson, who was convicted of a sexual assault
on a minor, reported hearing "rumors" and threats like "When you
least expect it Johnson" and "Filthy pedophile watch your back."
Johnson filed a level one grievance, which said that, although he
felt safe on "C Block," he did not feel safe outside, in the "chow
hall", or in the hallway during "chow times."
On June 5, Johnson met with Officer Thyng and asked for
protective custody. According to Thyng, he informed Johnson that
he would need to be segregated from the other inmates; he would be
handcuffed for his own safety; and he would be brought to a
segregation unit pending administrative review. According to
Thyng, he also explained that, to obtain protective custody,
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Johnson would need to identify an inmate or inmates that he feared.
Johnson reported that, although he heard the stated remarks, he was
unable to identify any specific speaker because the remarks were
always made behind his back and in a crowded area. Thyng
determined that Johnson was not eligible for protective custody
status due to a lack of verifiable information that Johnson was in
danger of being physically harmed. Thereafter, Johnson signed a
statement that said: "I feel safe on C block, as I have been there
for the past year, and I wish not to move, and no pc [protective
custody] at this moment."
Johnson, however, claimed that Thyng first denied his
grievance and that, five minutes later, he was called back to
Thyng's office where, under "duress and threat of being
handcuffed," brought to "the tank," and losing his property, he was
forced to write and sign the statement about not desiring
protective custody status. On June 8, Johnson filed a level two
grievance with Warden Blaisdell, complaining that Thyng had coerced
that statement from him and reiterating his request for protective
status.
On June 10, Johnson was threatened by inmate Carl Bickham
in the chow hall. Johnson did not report this threat. On June 11,
while in the chow hall, Bickham assaulted Johnson. Johnson was
treated for a head laceration, a black eye, and a concussion.
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According to Johnson, he suffered a detached retina which has
required several surgeries and he continues to have problems.
In the wake of the assault, a protective custody board
was convened on June 12. Johnson indicated that he feared for his
safety as he believed that he was still susceptible to physical
harm by Bickham. The board determined that NCF would transfer
Bickham from NCF to the Concord state prison to serve punitive
segregation and request that Bickham not be returned to NCF. Due
to Bickham's transfer, the board determined that Johnson could
remain at NCF and denied protective custody status.
On June 13, Johnson filed an "emergency" grievance with
Commissioner Wrenn, contending that he had been assaulted on June
11 because of rumors that he suspected had been spread by staff and
that he feared retaliation by staff. When he submitted this
"emergency" grievance to Commissioner Wrenn on June 13, Johnson had
not yet received Warden Blaisdell's response to his June 8th second
level grievance. In his "emergency" grievance, Johnson asked the
Commissioner for "help for relief" but also specifically remarked
that "in no way will this grievance take the place of the actual
grievance that will be submitted to you upon my receiving response
from the warden and my [June 8th] second level grievance."
Subsequently on that same day, Warden Blaisdell responded to
Johnson's June 8th level two grievance, writing: "What is it that
you actually want? Do you want to [sic] PC? Transfer out of
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state? If we have to PC you[,] that can be done if the criteria is
there."
On June 19, Commissioner Wrenn replied to Johnson's June
13th "emergency" grievance, stating "Since this will not take the
place of the actual grievance you will file after receiving a
response from the warden, I will wait for the actual grievance
before I reply."
Johnson never filed any further grievance with the
Commissioner.
II.
Johnson, who had filed a § 1983 action in the federal
district court prior to the assault, amended that action to include
a claim that, in violation of the Eighth Amendment, Thyng had
intentionally failed to protect Johnson from a known risk to his
safety by Thyng's June 5th refusal of his request for protective
custody.1 After a one-day bench trial, the district court
concluded that this "failure to protect" claim was barred by a
failure to exhaust administrative remedies, as required by PLRA as
a condition precedent to suit.
PLRA provides:
1
The district court disposed of the other claims against other
defendants by way of summary judgment, leaving only the "failure to
protect" claim against Thyng. On appeal, Johnson raises no issues
with respect to the district court's resolution of his other
claims. Accordingly, we omit any description and discussion of
these other claims.
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No action shall be brought with
respect to prison conditions under
section 1983 of this title, or any
other Federal law, by the 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). We review, de novo, the dismissal of
Johnson's § 1983 claim for failure to comply with PLRA's exhaustion
requirement. Acosta v. United States Marshals Serv., 445 F.3d 509,
512 (1st Cir. 2006).
Exhaustion is mandatory, Woodford v. Ngo, 548 U.S. 81, 85
(2006), and "has a decidedly procedural emphasis," Booth v.
Churner,
532 U.S. 731, 739 (2001). That is, what must be exhausted
is the process, not the form of relief.
Id. "All 'available'
remedies must [] be exhausted; those remedies need not meet federal
standards; nor must they be 'plain, speedy, and effective.'"
Porter v. Nussle,
534 U.S. 516, 524 (2002). A prisoner must
exhaust administrative remedies before a complaint under § 1983
will be entertained even where the relief sought cannot be granted
by the administrative process. Booth v.
Churner, 532 U.S. at 734.
To properly exhaust administrative remedies, a prisoner
must complete the prison grievance procedures. Jones v. Bock, 549
U.S. 199, 218 (2007). "[I]t is the prison's requirements, and not
the PLRA, that define the boundaries of proper exhaustion."
Id.
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III.
Thyng argues that Johnson failed to exhaust his
administrative remedies because he never completed the third level
of the process by filing his grievance with the Commissioner.
Johnson does not dispute that he did not complete the third level
of the grievance process by filing his grievance with the
Commissioner.2 Instead, he argues that the third level of NCF's
grievance process is not mandatory. His theory is that an optional
level of administrative review need not be exhausted, that he has
exhausted any mandatory component of the prison grievance system,
and, therefore, he has complied with PLRA's requirement of
exhaustion as a condition precedent to filing suit.
In support of his claim that the third level of NCF's
grievance process is not mandatory, Johnson relies on what he views
2
We need not address Johnson's contention that Thyng
interfered with his filing of his level two grievance with the
warden. For purposes of determining whether Johnson had complied
with the exhaustion requirement, the district court made several
assumptions in Johnson's favor. First, there was some dispute as
to whether Johnson used the proper grievance form. Johnson
asserted that he used an "inmate request" form because Thyng would
not give him a grievance form and threatened to retaliate against
him. The district court accepted Johnson's contention as true for
purposes of its analysis and further accepted, for purposes of
analysis, that the fact that the grievance was filed on a request
form, rather than a grievance form, was not determinative of
whether Johnson had complied with the exhaustion requirement.
Second, the court accepted Johnson's version of the facts regarding
his compliance with the first and second levels of the grievance
procedure and, so, assumed, in Johnson's favor, that he had
complied with the grievance process through level two. We, too,
make these same assumptions in Johnson's favor.
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as permissive language in two documents: (1) the N.H. Department of
Corrections Policy and Procedure Directive ("PPD") 1.16 IV C, says,
in relevant part, "If an inmate is not satisfied with the
Warden/Director's response, he/she may file an appeal using the
grievance form, to the Commissioner's office" (emphasis added) and
(2) NCF's Inmate Manual Section D.3, says, in relevant part, "if
the Warden has not solved the problem with his/her response, a
final grievance form may be sent to the Commissioner of
Corrections" (emphasis added).
Whatever the merits of Johnson's contention that level
three of the prison grievance process is optional, rather than
mandatory, PLRA, nonetheless, speaks in terms of requiring that all
"available" remedies be exhausted. See 42 U.S.C. § 1997e(a) ("No
action shall be brought ... until such administrative remedies as
are available are exhausted"); Porter v. Nussle, 534 U.S. at 524
("All 'available' remedies must [] be exhausted."). A level three
grievance directed to the Commissioner was "available," even if not
mandatory. And, Johnson concedes he did not file one.
The emerging case law rejects Johnson's theory that an
optional level of administrative review need not be exhausted for
purposes of PLRA. For example, the Sixth Circuit in Owens v.
Keeling, 461 F.3d 763 (6th Cir. 2006), concluded that the
permissive language authorizing an appeal -- the prisoner "may
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appeal" a classification action -- is irrelevant to the
consideration of the exhaustion issue.
"Although a remedy must be
'available' in order for a prisoner
to be required to pursue it to
exhaust his claim, ... this does not
mean that the prison must require
the prisoner to exhaust his remedies
for the remedy to be 'available.'
Generally, the prisoner would be
free to choose not to exhaust his
remedies; he would only be required
to do so if he wants to file a
complaint regarding the matter in
federal court."
Id. at 770 n.4 (emphasis in the original; citations omitted). The
Third Circuit concluded similarly in an unpublished decision.
Davis v. Warman, 49 Fed. Appx. 365, 367-68 (3d. Cir. 2002).
District courts, as well, in unpublished decisions, have rejected
the argument that permissive language in a prison grievance
procedure means that that procedure falls outside PLRA's exhaustion
requirement. See, e.g., Warren v. Fort Dodge Corr. Facility,
2009
WL 1473955, at *3 (N.D. Iowa May 27, 2009); Braimah v. Shelton,
2005 WL 1331147, at *3 (D. Neb. May 20, 2005); Hope v. Velasco,
2004 WL 417198, at *2 (N.D. Ill. Feb. 23, 2004).
Any reliance on an earlier published district court
opinion, In re Bayside Prison Litigation, 190 F. Supp. 2d 755, 771-72
(D. N.J. 2002), for a contrary position is unwarranted in light of
that court's subsequent disavowal of its conclusion as "clearly
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erroneous." In re Bayside Prison Litigation, No. 97-cv-05127, slip
op. at 8-9 (D. N.J. June 9, 2004).
Thus, even assuming that Johnson has correctly
characterized the third level of NCF's grievance process as
optional, and not mandatory, a level three grievance directed to
the Commissioner was an "available" remedy for purposes of PLRA
exhaustion. Johnson's concession that he did not file one dooms
his § 1983 claim.
Johnson proffers an additional theory in support of his
contention that he has complied with PLRA's requirement of
exhaustion as a condition precedent to filing suit. Johnson points
out that the prison transferred his assailant, Bickham, to another
prison facility before the conclusion of the administrative
grievance process. According to Johnson, since he achieved a
favorable outcome, he did not need to appeal the Warden's decision
to the Commissioner and his "available" remedies were, therefore,
exhausted.3 If, in fact, there was no pertinent additional relief
3
At the bench trial, Johnson's explanation for his failure to
complete the third level of grievance was somewhat different. He
explained there that, because he had already been assaulted, he
believed that filing that level of grievance would be futile. The
district court rejected that rationale on the basis of Booth v.
Churner, 532 U.S. at 741 n.6 (rejecting a "futility" exception and
holding that PLRA mandates exhaustion despite the fact that the
grievance process could not provide the inmate with money damages)
and Medina-Claudio v. Rodriguez-Mateo,
292 F.3d 31, 35 (1st Cir.
2002) (holding that inmate must exhaust administrative remedies at
the first prison facility even if transferred to a different
facility).
Defendant Thyng argues that Johnson's current explanation,
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obtainable through the grievance process, further exhaustion might
be excused. See Booth v. Churner, 532 U.S. at 736 (holding that
administrative remedies remain "available" and must be exhausted so
long as the administrative process has authority to take some
action in response to a complaint, even if not the remedial action
the inmate demands) (emphasis added); Brown v. Valoff,
422 F.3d
926, 934-35 (9th Cir. 2005) (concluding that Booth made clear that
exhaustion is not required when no pertinent relief can be obtained
through the administrative process) (emphasis added).
Johnson's current claim of being satisfied with the
prison transfer of Bickham, however, conflicts with the record. For
example, on June 13, two days after the assault by Bickham, Johnson
wrote to Thyng stating that, even though Bickham had been sent to
another facility, he did not feel safe because of "ongoing threats
and rumors from Mr. Bickum [sic] friends and other inmates."
Johnson's district court filings, as well, contradict Johnson's
current contention that he was satisfied with the transfer of
Bickham. On July 17, Johnson wrote to the district court,
contending that he was "still afraid for [his] life." And, in
i.e., that he was "satisfied" with the prison's response of
transferring Bickham, was not raised in the district court and is,
therefore, waived. As Johnson is pro se, we may grant him some
leeway as to whether his current claim of being "satisfied" by the
transfer is but another way of describing the circumstances in the
wake of the assault. In any event, we need not rely on the waiver
argument as, for the reasons stated in the text, Johnson's
contention lacks merit.
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response to Thyng's motion for summary judgment, Johnson claimed
that, at the protective custody board when he was informed that
Bickham had been transferred, he responded: "What about the other
inmates that are after me or have heard the rumors? What about
[Bickham's] brother that [sic] lives on D-Block?" It is evident
that, contrary to Johnson's current assertion, he was not satisfied
with the prison transfer of Bickham. And, in any event, Bickham's
transfer to a different facility did not constitute the only
available relief, such that the administrative process could
provide no other pertinent relief. Given that Johnson persisted in
claiming the existence of threats from other inmates, the level
three of the grievance process was available to provide a remedy to
relieve those threats, apart from the transfer of Bickham.
Johnson's failure to exhaust this level of the grievance process
precludes his current federal court claim. See Ruggiero v. County
of Orange, 467 F.3d 170, 177 (2d Cir. 2006) (dismissal of § 1983
action affirmed for failure to exhaust where inmate's transfer to
another prison, while arguably providing him with relief by
separating him from officers who allegedly mistreated him, did not
provide him with all of the relief available to him, since a formal
grievance might have resulted in developing policies and procedures
pertaining to the grievance of disciplining the officers).
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IV.
The judgment of the district court, entered on May 8,
2009, is affirmed.
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