UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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FRED PLUMMER, )
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Plaintiff, )
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v. ) Civil Action No. 07-1161 (RMU)
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DISTRICT OF COLUMBIA, )
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Defendant. )
_______________________________________)
MEMORANDUM OPINION
I. Introduction
Plaintiff Fred Plummer, a prisoner in the District of Columbia jail, filed this pro se
complaint against the defendant District of Columbia (“District”) under 42 U.S.C. § 1983 for
alleged Eighth Amendment violations. The District filed a motion to dismiss or for summary
judgment for failure to exhaust administrative remedies, and Plummer filed an opposition to the
motion. Because the record establishes that Plummer did not exhaust his administrative
remedies before filing this action, the District will be granted summary judgment as a matter of
law.
II. Background
The incidents giving rise to this complaint occurred in the D.C. Jail over the course of the
month of May 2007, and this lawsuit was filed on June 29, 2007. Compl. at 1-2. The District’s
Coordinator of Litigation for the Department of Corrections filed a declaration stating that
Plummer had not filed any formal inmate grievance relating to a request he allegedly made on
June 27, 2007 for protective custody and placement in a single cell. See Def.’s Mot. to Dismiss
or for Summ. J., Ex. 2 (Decl. of Sgt. Aden Bushee, Sept. 24, 2007 (“Bushee Decl.”)) ¶ 3. In an
undated statement signed by Plummer and received by this Court in December 2008, he claims
that he did exhaust his administrative remedies. In support, he has submitted a memorandum
from the jail warden, acknowledging that on December 4, 2007, the warden had received a
grievance from Plummer, that the grievance had been misplaced, and requesting Plummer to “re-
submit your grievance so that your needs can be properly addressed.” See Pl.’s Response to
Order to Show Cause, appending Mem. to Plummer from Warden Wainright, Feb. 22, 2008
(“Wainright Mem.”).
III. Legal Analysis
A. The Prison Litigation Reform Act
The Prison Litigation Reform Act of 1995 (“PLRA”) applies to “any person incarcerated
or detained in any facility who is accused of, convicted of, [or] sentenced for . . . violations of
criminal law or the terms and conditions of parole, probation, pretrial release or diversionary
program.” 42 U.S.C. § 1997e(h). The PLRA requires that before filing a § 1983 or other federal
lawsuit regarding the conditions of confinement, a prisoner must exhaust “such administrative
remedies as are available.” See 42 U.S.C. § 1997e(a). “[T]he PLRA’s exhaustion requirement
applies to all inmate suits about prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force or some other wrong.” Porter v.
Nussle, 534 U.S. 516, 532 (2002). “There is no question that exhaustion is mandatory under the
PLRA and that unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199,
211 (2007). The exhaustion requirement is not satisfied by filing an untimely or otherwise
procedurally defective administrative grievance or appeal. Woodford v. Ngo, 548 U.S. 81, 83
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(2006). Provided that the administrative process is capable of addressing the situation giving rise
to the grievance, exhaustion of administrative remedies is required even if the precise remedy
sought, such as damages, cannot be obtained through the administrative grievance. Booth v.
Churner, 532 U.S. 731, 739 (2001); cf. Kaemmerling v. Lappin, Slip op. No. 07-5065, at 5-6
(D.C. Cir. Dec. 30, 2008) (concluding that where the administrative process is incapable of
providing “any relief” or taking “any action whatsoever in response to [the prisoner’s] complaint,
“there is no administrative process to exhaust”). Proper exhaustion requires that the prisoner
complete the administrative review process as defined by the prison grievance process itself.
Jones, 549 U.S. at 218.
The failure to exhaust under the PLRA is not a jurisdictional bar, but operates as an
affirmative defense. Id. at 211-12. As such, it is properly raised on a motion for summary
judgment, where matters outside the pleadings are considered.
B. Summary Judgment under Rule 56
A defendant may at any time move for a summary judgment in the defendant’s favor as to
all or any claims asserted against it. Fed. R. Civ. P. 56(b). On a motion for summary judgment,
“[t]he inquiry performed is the threshold inquiry of determining whether there is a need for a trial
–– whether, in other words, there are any genuine factual issues that properly can be resolved
only by a finder of fact because they may reasonably be resolved in favor of either party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Summary judgment may be granted
only where the “pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Burke v. Gould,
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286 F.3d 513, 517 (D.C. Cir. 2002). A material fact is one that is capable of affecting the
outcome of the litigation. Liberty Lobby, 477 U.S. at 248. A genuine issue is one where the
“evidence is such that a reasonable jury could return a verdict for the nonmoving party,” id., as
opposed to evidence that “is so one-sided that one party must prevail as a matter of law,” id.
at 252. A court considering a motion for summary judgment must draw all “justifiable
inferences” from the evidence in favor of the nonmovant. Id. at 255. The nonmoving party,
however, must do more than simply “show that there is some metaphysical doubt as to the
material facts.” Rather, the nonmovant must “come forward with ‘specific facts showing that
there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986) (citing Fed. R. Civ. P. 56(e)) (emphasis in original). In other words, the
nonmoving party must present specific facts that would enable a reasonable juror to find in that
party’s favor. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). In the end, “the plain
language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to
make a showing sufficient to establish the existence of an element essential to that party's case,
and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
C. The Court Grants the Defendant’s Motion for Summary Judgment
The PLRA applies to this action filed under § 1983 by a prisoner complaining about the
conditions of his confinement, and in particular, incidents that occurred in May 2007. The PLRA
requires that prisoners exhaust their administrative remedies prior to filing a suit such as this one,
which Plummer filed on June 29, 2007. Here, the District has filed a sworn statement attesting
that Plummer did not complete the inmate grievance process prior to filing this suit. Bushee
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Decl. ¶ 3. While Plummer disputes the District’s attestation, he does so in a conclusory manner
and does not support his statements with specific facts. The documentary evidence that Plummer
submitted with his opposition to the District’s dispositive motion establishes that Plummer
initiated an inmate grievance that was received by the warden’s office on December 4, 2007,
more than five months after he filed this lawsuit.
The defendant’s burden as the moving party may be discharged by showing an absence of
evidence in support of the plaintiff’s case. Celotex, 477 U.S. at 325. On this record, there is no
evidence that the plaintiff exhausted his administrative remedies before filing this claim in court,
and there is a sworn statement and documentary evidence to support the conclusion that Plummer
did not exhaust the administrative remedies. Bushee Decl. ¶ 3; Wainright Mem. Therefore, the
Court concludes that no reasonable juror could find that Plummer exhausted his administrative
remedies prior to filing this law suit, and accordingly will grant the District’s motion for
summary judgment.
IV. Conclusion
Because the record establishes that the plaintiff did not exhaust his administrative
remedies before filing suit, as is required by the PLRA, 42 U.S.C. § 1997e(a), the Court grants
the District’s motion for summary judgment. A final order consistent with this memorandum
opinion is separately and contemporaneously issued this 9th day of February, 2009.
RICARDO M. URBINA
United States District Judge
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