CHARLES SIMPSON, District Judge
This matter is before the court on motion of the defendants, Robert Booker, et al., to amend the October 10, 2003 order of the court dismissing the action without prejudice for failure to exhaust administrative remedies.
It is undisputed that with respect to two of the plaintiffs, Alphonso Taylor and Larry Lewis, the Prison Litigation Reform Act (" PLRA") does not apply, as they were not prisoners at the time the complaint was filed. As they are not subject to the PLRA's exhaustion requirement, 42 U.S.C. § 1997e(a), the order dismissing their claims will be vacated.
The motion to amend will be denied as to the prisoner plaintiffs.
42 U.S.C. § 1997e(a)states: 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.
The defendants' argument urging dismissal of defendants, Chief Michael Horton, Lt. Felicia Welch, Tina Ashby, Sandy Northington, and Jefferson County Fiscal Court is moot in light of the vacation of the dismissal of the claims of Taylor and Lewis. The claims against these four defendants may proceed, as Taylor and Lewis were not subject to the PLRA. Therefore, the fact that these defendants were not named in the grievance is of no significance.
These plaintiffs do not deny that they did not exhaust the administrative grievance procedures of the Jefferson County Jail. None of the plaintiffs appealed from the initial decision concerning their grievance. However, each plaintiff filed an affidavit in support of his motion to amend, alleging that he did not know of the result of his initial grievance, he did not receive an inmate handbook containing the grievance procedures, he was not instructed on the process, or some combination of these averments.
The issue presently before the court is whether we should find that the appeals process was "unavailable" to the prisoner plaintiffs either because they did not know the outcome of their initial grievance or they did not know how to appeal that initial decision, and thus excuse their failure to exhaust the prison administrative process. There is no support in the law of the Sixth Circuit for this circumvention of the mandatory exhaustion requirement of § 1997e(a).
There is a strong line of cases in this circuit emphasizing the mandatory nature of the exhaustion requirement, and promoting its strict and literal application. The most recent cases have reaffirmed the viability of the principles set forth in Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001), Knuckles-El v. Toombs, 215 F.3d 640 (6th Cir.), cert. denied, 531 U.S. 1040, 121 S.Ct. 634, 148 L.Ed.2d 542 (2000), Brown v. Toombs, 139 F.3d 1102 (6th Cir. 1998), Hartsfield v. Vidor, 199 F.3d 305 (6th Cir. 1999), Wright v. Morris, 111 F.3d 414 (6th Cir.), cert. denied, 522 U.S. 906, 118 S.Ct. 263, 139 L.Ed.2d 190 (1997), and Freeman v. Francis, 196 F.3d 641 (6th Cir. 1999). See, Thomas v. Woolum, 337 F.3d 720 (6th Cir. 2003) and Williams v. McGinnis, 192 F. Supp.2d 757 (E.D.Mich.), affirmed, (unpubl.) 57 Fed.Appx. 662, 2003 WL 245352 (6th Cir. Jan. 31, 2003).
In Thomas, 337 F.3d at 726-27, the court noted that:
The Prison Litigation Reform Act prohibits inmates from challenging prison conditions in federal courts until they have exhausted their available administrative remedies.
42 U.S.C. § 1997e(a). There is no doubt that under the PLRA, exhaustion by prisoners is mandatory. [
citing Booth]. . . Because the purpose of the exhaustion requirement is to provide states the first opportunity to resolve problems themselves, an inmate who has not yet pursued available administrative remedies may not yet proceed in federal court. Thus, we have clearly held that an inmate does not exhaust available administrative remedies when the inmate entirely fails to invoke the prison's grievance procedure [
citing, Hartsfield and
Brown], or when the inmate filed such a grievance but "did not appeal the
denial of that complaint to the highest possible administrative level," [
citing, Wright and
Freeman]. . . Our precedent demonstrates only that, in keeping with the plain language of § 1997e(a), a prisoner does not exhaust his administrative remedies when he fails to commence the grievance process or to run the full gamut of appeals.
The court stated in Knuckles-El, 215 F.3d at 643, that where the prison has an administrative process that will review the complaint, a prisoner must exhaust, even in the instance where the remedy sought is unavailable under that process. See, also, Booth, 121 S.Ct. at 1823-25. The Sixth Circuit clearly articulated the burden imposed upon prisoners to establish exhaustion in Brown, 139 F.3d at 1104, where the court stated:
In light of the plain mandatory language of the statute regarding exhaustion of remedies, the legislative purpose underlying the plain language, and the sound policy on which it is based, this court will henceforth require that prisoners filing § 1983 cases involving prison conditions must allege and show that they have exhausted all available state administrative remedies. A prisoner should attach to his § 1983 complaint the administrative decision, if it is available, showing the administrative disposition of his complaint . . . The statutory language, "no action shall be brought" until all available remedies are "exhausted," should be interpreted to mean precisely what is obviously intended — that a federal court should not prematurely "decide" the merits of any such action. Federal courts should not adjudicate any such claim until after exhaustion unless the complaint satisfies § 1997e(c)(2).
Accord, Knuckles-El, 214 F.3d at 642. The court noted in
Knuckles-El that:
This court has found that the district court is not required to hold evidentiary hearings on the issue of exhaustion or "spend a lot of time with each case just trying to find out whether it has jurisdiction to reach the merits."
Knuckles-El v. Toombs, 215 F.3d 640 (6th Cir. 2000).
As recently as December, 2003, this rationale undergirding the strict application of the exhaustion requirement was restated in Griffith v. Michigan Department of Corrections, (unpubl.) 2003 WL 23095577 (6th Cir. Dec. 10, 2003).
The Court of Appeals further explained in Hartsfield, 199 F.3d at 309 that:
Even if plaintiff did file an initial grievance . . . he was required to continue to the next step of the grievance process within the time frame set forth in the regulations if no response is received from prison officials or if the prisoner is not satisfied with the response . . . [A]n inmate cannot simply fail to file a grievance or abandon the process before completion and claim that he has exhausted his remedies or that it is futile for him to do so because his grievance is now time-barred under the regulations. [
citing, Wright].
In Wyatt v. Leonard, 193 F.3d 876 (6th Cir. 1999), the court held that:
[T]he exhaustion requirement is now a necessary prerequisite to filing prisoner claims in federal court, and the district court no longer has the discretion to "waive" exhaustion as it did before the passage of the 1996 Act. [citations omitted]. . . [A]s we have previously held, the exhaustion provision is not jurisdictional. [citations omitted]. . . But as this court has already indicated in
Wright v. Morris, 111 F.3d 414, 420 (6th Cir.),
cert denied,
522 U.S. 906,
118 S.Ct. 263,
139 L.Ed.2d 190 (1997), that does not mean that the requirement is not mandatory.
The court found that the plaintiff, Wyatt, had substantially complied with the exhaustion requirement even though he had not literally done so, because his case fell into a
limited category of prisoner cases in which the events giving rise to the claim occurred before the effective date of the statute . . .[E]ven where a complaint is filed after the effective date of the 1996 Act, the exhaustion requirement does not apply when the inmates's ability to exhaust for the event that gave rise to the action expired before enactment of the 1996 Act.
This appears to be the only circumstance in which exhaustion has been excused in an action filed in this circuit after the effective date of the 1996 Act. As noted in Williams, 192 F. Supp.2d at 763, "The Sixth Circuit has not displayed the same flexibility when such extenuating circumstance is not present. [ citing, Freeman and Hartsfield]." In Williams, the court dismissed the prisoner's claims for failure to exhaust despite his explanation for why he could not show compliance with the requirement:
The court in its earlier ruling on this issue found that Williams's documented efforts at filing grievances and his explanations that he had never received any responses to his grievances demonstrated that he had "substantially complied" with the exhaustion requirement. Having re-examined the Sixth Circuit precedent on this issue as well as Williams's preferred evidence, this court concludes that Williams has not met his burden of proving administrative exhaustion . . . Given these precedents [
Wright, Hartsfield, Brown,
Wyatt, Freeman], William's proofs of exhaustion must be analyzed for quite literal compliance with available procedures . . . Williams offers a possible explanation for this lack of documentation, but his word is not sufficient evidence to create a material issue of fact . . . Though he did send a letter to the Step III agency, a letter is not the same as a grievance appeal . . . This court is not unsympathetic to the plausible frustrations that Williams may have faced during the grievance process, but he has simply not provided evidence sufficient to create a genuine issue of material fact as to administrative exhaustion, as he must do.
Accord, Thomas, 337 F.3d at 727 where, in delineating the stringent application of § 1997e(a), the court noted, "
see also Jones v. Smith, 266 F.3d 399, 400 (6th Cir. 2001) (affirming dismissal of § 1983 suit because plaintiff prisoner was
not vigilant enough in obtaining a grievance form after his initial request was denied and because the prisoner never made `any other attempt to obtain a form or to file a grievance without a form.')." Emphasis added.
In the case at bar, the plaintiffs are, admittedly not neophytes in the criminal justice system. In fact, Gaither, DePoyster, Elder, Bullock, Voyles, Reed, Silva, and Harrison all joined in a food grievance initiated by Lorenzo Smith on September 29, 2001. The prisoners' self-serving statements that they did not know the outcome of the grievance in this case, and that they did not know how to appeal a decision on an initial grievance appears to this court to be somewhat suspect.
However, taking the statements at face value for purposes of this analysis, the court finds that the precedent of this circuit still requires dismissal. In this circuit, a prisoner's proof of exhaustion is analyzed for quite literal compliance with available procedures. The plaintiffs' contention that the appeals process was not available to them cannot be accepted absent proof that access to such a procedure was sought but denied. Their statements that they were simply not provided the information concerning the outcome of the grievance or any higher level review does not address the availability of the procedure. The plaintiffs' pro hoc ergo proptor hoc statements evidence an "abandonment of the process" such as was found in Hartsfield. At the very least, the prisoners' "lack of vigilance," as described by Judge Moore in Thomas, precludes them from establishing that the appeal procedure was unavailable to them. The proof offered in Williams was far more compelling than that before this court, yet William's evidence was found wanting under the Sixth Circuit standard. In this case, the appeal process existed. The prisoners did not utilize it. The prisoners did not pursue their grievance beyond the initial filing. Therefore, they are unable to establish that they exhausted all available remedies.
The plaintiffs cite various cases from other jurisdictions in support of their contention that the appeal process was not an available remedy. The cases are factually distinguishable from the case at bar. Miller v. Norris, 247 F.3d 736 (8th Cir. 2001), for example, is not inconsistent with the Sixth Circuit standard on exhaustion nor with our ruling herein. The plaintiff in Miller proved that he had requested grievance forms in order to exhaust the available procedures, but was denied the forms. He provided the court contemporaneous documentation to support his contention. While the plaintiffs may find more forgiving language in the caselaw of other jurisdictions, we are bound by the directives of the Sixth Circuit in deciding this matter.
Miller v. Norris, 247 F.3d 736 (8th Cir. 2001); In re Bayside prison Litigation, 190 F. Supp.2d 755 (D.N.J. 2002); Jernigan v. Stuchell, 304 F.3d 1030 (10th Cir. 2002); Lewis v. Washington, 300 F.3d 829 (7th Cir. 2002); Foulk v. Charrier, 262 F.3d 687 (8th Cir. 2001); Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998); and Powe v. Ennis, 177 F.3d 393 (5th Cir. 1999).
The law in the Sixth Circuit places the burden of proving exhaustion of administrative remedies on the prisoner. Failure to make the requisite showing mandates dismissal. Therefore, the motion to amend the October 10, 2003 order dismissing the claims of the prisoner plaintiffs will be denied. A separate order will be entered this date in accordance with this opinion.