UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KENNETH A. HINTON, )
)
Plaintiff, )
)
v. ) Civil Action No. 08-312 (RWR)
)
CORRECTIONS CORPORATION OF )
AMERICA et al., )
)
Defendants. )
MEMORANDUM OPINION
Plaintiff Kenneth A. Hinton filed this suit against the operators of the Central Treatment
Facility (“CTF”), a correctional facility in the District of Columbia. Defendants have filed a
motion to dismiss and the plaintiff has filed an opposition. Because defendants have established
that the plaintiff did not exhaust his administrative remedies before filing this action as the law
requires, the defendants will be granted summary judgment.
BACKGROUND
The complaint alleges that “from on or about May 25, 2007,” while Hinton was confined
in the CTF, overcrowded and unsanitary conditions there caused him to become infected with the
methicillin-resistant Staphylococcus aureus (“MRSA”) bacteria. Compl. at 3. The complaint,
filed on a form for claims brought under 42 U.S.C. § 1983 for civil rights violations, does not
mention any specific civil rights violation, but repeatedly employs the phrases “deliberate
indifference” and “bad faith,” which are commonly associated with Eighth Amendment
violations. The defendants interpreted the complaint as one brought under § 1983 for violation
of the Eighth Amendment, and the plaintiff has neither objected to that interpretation nor
otherwise corrected it. That interpretation is a reasonable one, and the complaint will be
construed as one under § 1983.
The complaint alleges that CTF staff ignored his requests for cleaning supplies and
disinfectants with which to sanitize his cell and surroundings, and that as a result of the MRSA
infection, he suffered painful medical treatment, mental anguish and emotional distress, and now
has a scar on his upper thigh and elbow from the medical treatment. Compl. at 4. Hinton seeks
two million dollars in compensatory and punitive damages. Id.
In a declaration filed with his complaint, Hinton states that between May 28 and
August 22, 2007, he “submitted numerous ‘Institutional Inmate Grievances’ to the CCA/CTF
staff and particular[ly] to the attention of John Caulfield, Warden, regarding the unhealthy,
unsafe and unsanitary conditions [that he] and other inmates were exposed to as a proximate
result of not being provided requested cleaning supplies and disinfectants to clean [their] cells.”
Decl. of Kenneth Hinton (Aug. 31, 2007) (original spelling and punctuation altered). Hinton’s
declaration also states that he “notified the Warden, John Caulfield via ‘inmate request to staff’
forms and grievances that were logged with the designated CCA/CTF Grievance Officer, Ms.
Allen.” Id.
Defendants have moved to dismiss the complaint contending that the plaintiff did not
exhaust all available administrative remedies as is required by law. The motion to dismiss is
supported by a sworn statement from the CTF’s Facility Grievance Officer, Joyce Allen, attesting
that her review of the grievance log for 2007 showed that Hinton had filed six inmate grievances,
but that none of them related to his MRSA infection or the allegedly unsanitary conditions at the
CTF, which are the subject of this suit. See Affidavit of Joyce Allen (Mar. 31, 2008) (“Allen
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Aff.”) ¶¶ 12, 19 (appending copies of the grievances). The Allen affidavit explains that any
grievance involving medical services is logged into the grievance log and then forwarded to a
different contractor who provides the medical services, which the defendants do not provide. Id.
¶ 5. In accordance with CTF policy at the time, all inmates were provided upon arrival in the
CTF with an Inmate Handbook containing a summary of the facility’s grievance policies and
procedures. Id. ¶¶ 6,7. CTF inmates also had access to the complete grievance policy at each
housing unit and the CTF law library, as well as from CTF staff. Id. ¶ 7. CTF policy encouraged
inmates to submit an Inmate Request Slip or speak to any staff member about their grievance
before initiating the first step of the official grievance process. Id. ¶ 8. The official grievance
process in effect at the time consisted of five sequential steps, each subject to strict deadlines. Id.
The regular process required two steps involving written submissions before any grievance
would be directed to the Warden’s attention, which occurred at the third step in the process, and
only if the grievance had not already been resolved, and only if the deadlines at each step to that
point had been met. Id. At the time Hinton was confined at the CTF, an inmate could bypass the
first step of the five-step process, but only if the grievance was initiated at the second step within
seven days of the triggering incident. Id. ¶ 9. The grievance policy also had procedures for
emergency grievances, such that if an inmate filed an emergency grievance, the CTF grievance
officer would review the grievance within 24 hours to determine whether the situation did, in
fact, constitute an emergency. If an emergency exists, the grievance officer would prepare a
response within 72 hours of receipt of the grievance. Id. ¶ 11.
In his opposition, Hinton stated that the CTF grievance officer never informed him that he
“must exhaust his administrative remedies regarding his need for reasonable, diligent, and
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expedient medical care.” Opp’n at 2. He further stated that he “followed all available
‘emergency remedy’ procedures that [were] communicated to him by the CCA/CTF unit manager
and nurse who assessed the plaintiff’s need for medical care.” Id. On this basis, Hinton argues
that he did properly exhaust all available administrative remedies.
DISCUSSION
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought
with respect to prison conditions under . . . [any] Federal law by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997(e)(a). “There is no question that exhaustion is mandatory under
the PLRA . . . .” Jones v. Bock, 549 U.S. 199, 211 (2007). Failure to exhaust under the PLRA is
an affirmative defense that a defendant may plead or raise on motion.1 See id. at 211-212.
When a court considers documents and declarations filed by the parties that were not
“either attached to or incorporated in the complaint,” a motion to dismiss for failure to state a
1
The law is unsettled, however, on the question of the extent to which waiver, equitable
estoppel or tolling can apply to defeat the affirmative defense of non-exhaustion under the
PLRA. In this circuit, it does appear that a defendant may waive the defense of non-exhaustion
by not raising it. See Ali v. District of Columbia, 278 F.3d 1, 5-6 (D.C. Cir. 2002) (concluding
that the PLRA’s exhaustion requirement is not jurisdictional and noting that it had considered a
waiver argument in Jackson v. District of Columbia, 254 F.3d 262, 267 (D.C. Cir. 2001)).
Unlike other circuits, though, this circuit has not held that equitable estoppel may defeat the
defense of non-exhaustion. See Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004) (holding
that PLRA’s exhaustion requirement is subject to equitable estoppel); Wright v. Hollingsworth,
260 F.3d 357, 358 n.2 (5th Cir. 2001); Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998)
(stating that the amended PLRA statute imposes an exhaustion “requirement, rather like a statute
of limitations, that may be subject to certain defenses such as waiver, estoppel, or equitable
tolling”); see also Jernigan v. Stuchell, 304 F.3d 1030, 1033 (10th Cir. 2002) (not deciding
whether estoppel applies to PLRA exhaustion because plaintiff had not established elements of
estoppel); Lewis v. Washington, 300 F.3d 829, 834 (7th Cir. 2002) (noting that the Fifth Circuit’s
application of estoppel to PLRA exhaustion was “persuasive,” but not deciding whether estoppel
applies to PLRA exhaustion because plaintiff did not present facts to establish estoppel).
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claim must be treated as one for summary judgment. Egilman v. Keller & Heckman, LLP, 401 F.
Supp. 2d 105, 109 (D.D.C. 2005). A court must grant a motion for summary judgment “if the
pleadings, the discovery, and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c). If a party “fails to establish the existence of an element essential to
his case and on which [that party] will bear the burden of proof at trial,” summary judgment is
warranted. Hazward v. Runyon, 14 F. Supp. 2d 120, 123 (D.D.C. 1998) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)).
When ruling on a summary judgment motion, a court is bound to draw “all justifiable
inferences” in the nonmoving party’s favor and accept the nonmoving party’s evidence as true,
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), and “may not make credibility
determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000). However, “the nonmoving party ‘must do more than simply show that there is
some metaphysical doubt as to the material facts.’” Bias v. Advantage Int’l, Inc., 905 F.2d 1558,
1561 (D.C. Cir. 1990) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986)). Rather, it must “provide evidence that would permit a reasonable [fact-finder] to
find” in the non-moving party’s favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir.
1987).
In this case, the defendants have established that the inmate grievance process at the CTF
had multiple distinct steps that had to be taken within certain time periods and in a certain
sequence, and that an emergency grievance had to qualify as an emergency to be processed as
such. The Allen affidavit established that the institution’s grievance log shows that the plaintiff
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initiated six grievances, none of which relates to the subject matter of this case. The plaintiff has
responded that the grievance officer did not tell plaintiff that he needed to file a grievance
regarding his medical treatment.2 This response does not raise a genuine issue of material fact,
but rather concedes that no grievance was filed. The plaintiff has not offered evidence of
affirmative misconduct by prison officials that prevented the plaintiff from initiating and
exhausting all available administrative remedies that might justify the application of estoppel to
defeat the defense. The plaintiff does not dispute that he received an Inmate Handbook
containing a summary of the grievance process, and the record shows clearly that he had access
to the Inmate Handbook and was familiar with parts of it. See Allen Aff., Att. B (Hinton’s
inmate grievance filed May 4, 2007, citing page 12 of the Inmate Handbook). The plaintiff also
does not dispute that he had other means of informing himself of the requirements of the official
grievance process. Plaintiff has averred that he submitted numerous institutional inmate-to-staff
grievances to the CCA/CTF staff and particularly to the attention of the Warden, and that he
followed all available “emergency remedy” procedures communicated to him by the CCA/CTF
unit manager and nurse. Opp’n at 2. Crediting plaintiff’s statements as true, the plaintiff has not
provided evidence that establishes that he followed the prescribed grievance procedures in
sequence and met the requirements at each step, thereby exhausting all available administrative
remedies, or that defendants’ conduct should operate to defeat the defense of non-exhaustion.
2
In accord with its obligation, the Court makes no credibility determinations about the
plaintiff’s assertion that he was not aware of the need to exhaust his administrative remedies
regarding the medical staff’s response to his MRSA infection in the days after May 25, 2007,
even though prior to that time he had filed a medical grievance regarding his prescription
eyeglasses. Allen Aff. ¶ 14 (reporting that the Grievance Log showed that on May 14, 2007,
Hinton submitted Medical Grievance 07-295 complaining that he had not received his
prescription eyeglasses).
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CONCLUSION
Because the plaintiff has not provided evidence that would permit a reasonable fact-finder
to conclude on this record that plaintiff exhausted all available administrative remedies, a
prerequisite to this suit, summary judgment for the defendant is warranted and will be granted.
A separate order accompanies this memorandum opinion.
SIGNED this 9th day of June, 2009.
/s/
RICHARD W. ROBERTS
United States District Judge
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