United States District Court, E.D. Missouri, Eastern Division
RISHARD L.A. EDWARDS, Plaintiff,
CBM MANAGED SERVICES, Defendant.
MEMORANDUM AND ORDER
M. BODENHAUSEN UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendant CBM Managed
Services' (“CBM”) Motion to Dismiss (ECF No.
16). Plaintiff Rishard L.A. Edwards (“Edwards”)
has not filed a response to the motion to dismiss even though
the Court directed Edwards to show cause why CBM's motion
should not be granted. (ECF No. 21) Accordingly, the issues
are fully briefed. All matters are pending before the
undersigned United States Magistrate Judge, with consent of
the parties, pursuant to 28 U.S.C. § 636(c).
November 27, 2017, Edwards commenced this action by filing a
pro se Complaint and a motion to proceed in
forma pauperis. Edwards, a pretrial detainee confined to
the St. Louis City Justice Center (“Justice
Center”), filed this action, pursuant to 42 U.S.C.
§ 1983 and the Eighth and Fourteenth Amendments,
alleging violations of his civil rights. (ECF No. 1,
Complaint) In particular, Edwards alleges that CBM (a/k/a
Catering by Marlin's, Inc.), the food service provider
that is contracted to provide three meals per day to the
inmates at the Justice Center, has a policy and a practice of
failing to provide adequate nutrition by depriving the
inmates of fruit in their daily meals. Edwards sues CBM
in its official capacity.
acknowledged that there is a prisoner grievance procedure at
the Justice Center, and he “presented this grievance
system the facts which are at issue in this complaint.”
(Id. at 2) In explaining what steps he took, Edwards
noted that “I've asked for multiple grievance forms
and they have failed to give me one.” (Id. at
filed three putative Informal Resolution Requests
(“IRR”). (ECF No. 1, City of St. Louis Department
of Public Safety Division of Corrections at 1-3) On October
17, 2017, Edwards completed a putative IRR, questioning why
the inmates are not served fruit. (Id. at 1) Edwards
indicated that he needed “to file a grievance on CBM
because fruit should be part of breakfast, lunch or
dinner.” (Id.) Edwards noted that “My
copies look like original because they wont [sic]
give us carbon copies so we have to make our own”
handwritten on the IRR. (Id.) Edwards also filed
putative IRRs on July 30 and August 5, 2017. (Id. at
2-3) All three putative IRRs have “My Records”
handwritten across the top with the notation of “Staff
Never Responded” on the signature line for “CSU
Staff.” (Id. at 1-3)
moved to dismiss on February 7, 2018. (ECF No. 16) Edwards
failed to file his response by the required time. On February
28, 2018, the Court ordered Edwards to show cause why
CBM's motion to dismiss should not be granted no later
than March 23, 2018. (ECF No. 21) As of this date, Edwards
has not responded to this Order or filed any response to
CBM's motion to dismiss.
purpose of a motion to dismiss for failure to state a claim
is to test the legal sufficiency of the complaint. To survive
a motion to dismiss pursuant to Rule 12(b)(6) for failure to
state a claim upon which relief can be granted, “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. V.
Twombly, 550 U.S. 544, 570 (2007)). The requirement of
facial plausibility is satisfied “when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. A claim for relief
“must include sufficient factual information to provide
the ‘grounds' on which the claim rests, and to
raise a right to relief above a speculative level.”
Schaaf v. Residential Funding Corp., 517 F.3d 544,
549 (8th Cir. 2008) (quoting Twombly, 550 U.S. at
555 & n.3). This obligation requires a plaintiff to plead
“more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do.” Twombly, 550 U.S. at 555.
motion to dismiss, the Court accepts as true all of the
factual allegations contained in the complaint, even if it
appears that “actual proof of those facts is
improbable, ” and reviews the complaint to determine
whether its allegations show that the pleader is entitled to
relief. Id. at 555-56; Fed.R.Civ.P. Rule 8(a)(2).
The principle that a court must accept as true all of the
allegations contained in a complaint do not apply to legal
conclusions. Iqbal, 556 U.S. 678.
argues that Edwards failed to exhaust his administrative
remedies and that his claims are therefore barred by the
Prison Litigation Reform Act
(“PLRA”). Under the PLRA, “[n]o 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.” 42 U.S.C. § 1997e(a); Porter v.
Nussle, 534 U.S. 516, 524 (2002) (holding that
exhaustion is mandatory).
to exhaust remedies under PLRA is an affirmative defense.
Jones v. Bock, 549 U.S. 199, 218 (2007). As such,
the defendant bears the burden of proving that the
prisoner-plaintiff failed to exhaust all available remedies.
Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir.
are excused from exhausting administrative remedies
“when officials have prevented prisoners from utilizing
the procedures, or when officials themselves have failed to
comply with the grievance procedures.” Gibson v.
Weber, 431 F.3d 339, 341 (8th Cir. 2005). This is
because “a remedy that prison officials prevent a
prisoner form ‘utiliz[ing]' is not an
‘available' remedy under § 1997e(a).”
Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001);
see also ...