United States District Court, E.D. Missouri, Northern Division
MEMORANDUM AND ORDER
SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE.
case is before the Court on the Motion to Dismiss for Failure
to Exhaust Administrative Remedies filed by Defendant Ruanne
Stamps, M.D. and Defendant Kayla Nivert. (Doc. 72). The
motion has been fully briefed. and the parties have consented
to the jurisdiction of the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc.
66). For the following reasons, the motion will be granted
and the claims against Defendants Stamps and Nivert will be
Factual and Procedural Background
Harry Justus, Jr. is an offender in the Missouri Department
of Corrections (“MDOC”). At all times relevant to
this action, he was incarcerated at the Moberly Correctional
Center (“MCC”) in Moberly, Missouri. On November
16, 2017, Plaintiff filed his original pro se
prisoner civil rights complaint in this Court. (Doc. 1). The
Court subsequently appointed counsel for Plaintiff, and
through counsel, Plaintiff amended his complaint several
times. In the Third Amended Complaint, Plaintiff alleges
claims pursuant to 42 U.S.C. § 1983 against five
defendants: Dr. Ruanne Stamps and Kayla Nivert (the
“Medical Defendants”), who were medical
professionals working at MCC; and Darryl Taylor, Joshua
Crader, and Tammy Gittemeier, who were employed by MDOC and
working at MCC (the “MDOC Defendants”). Plaintiff
alleges a single count of deliberate indifference to
Plaintiff's medical condition against each defendant,
asserting that each defendant responded inadequately or
inappropriately to his complaints of severe abdominal pain in
or around October 2017.
February 27, 2019, the MDOC Defendants filed a motion for
summary judgment on the claims against them, arguing that
dismissal was required because Plaintiff had failed to
exhaust administrative remedies prior to filing his initial
complaint, as required by the Prison Litigation Reform Act,
42 U.S.C. § 1997e(a). On May 14, 2019, the Court granted
the MDOC Defendants' motion and dismissed the claims
against the MDOC Defendants, without prejudice.
11, 2019, the Medical Defendants filed the instant motion to
dismiss. The Medical Defendants make the same argument as the
MDOC Defendants did: that Plaintiff's claims against them
must be dismissed because Plaintiff failed to exhaust
administrative remedies prior to filing his initial
complaint. Although the Medical Defendants brought their
motion as a motion to dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, they relied on
materials outside the pleadings for their motion.
Specifically, they attached prison records to their motion
showing the following: On October 30, 2017, Plaintiff filed
an Informal Resolution Request (“IRR”) claiming
deliberate indifference to medical needs related to his
abdominal pain. See Def's Ex. A, Doc. 74, at 4.
On November 13, 2017, the director of nursing at MCC, Deborah
Willis, responded to Plaintiff's IRR. Id. at 6.
On November 17, 2017, Plaintiff filed a grievance indicating
that the response to the IRR was inadequate. Id. at
1-2. On December 18, 2017, Health Service Administrator
Bonnie Boley responded to the grievance and found no
deliberate indifference. Id. at 3.
24, 2019, Plaintiff filed an opposition to the motion to
dismiss in which Plaintiff did not acknowledge the evidence
presented in support of Defendants' motion, but rather
stated that Defendants had failed to establish the
affirmative defense of absence of exhaustion because
“no evidence has been adduced.” See
Pl.'s Mem. Opp'n, Doc. 76, at 1. Plaintiff argued
that Defendants' argument would be more appropriately
reviewed on a motion for summary judgment. On June 26, 2019,
after review of the motion and Plaintiff's opposition,
the Court entered an order stating that because Defendants
had presented materials outside the pleading in support of
their motion, the Court would treat Defendants' motion an
as a motion for summary judgment pursuant to Rule 12(d). To
avoid any possible prejudice to Plaintiff, the Court gave
Plaintiff until July 3, 2019, to file a supplemental response
in which Plaintiff could address Defendants' evidence and
present any contrary evidence or argument, and gave the
Medical Defendants until July 10, 2019, to file a reply.
Plaintiff did not file any supplemental response. On July 10,
2019, the Medical Defendants filed their reply. The motion is
therefore fully briefed and ready for ruling.
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). See also Hill v. Walker, 737 F.3d 1209, 1216
(8th Cir. 2013). The movant “bears the initial
responsibility of informing the district court of the basis
for its motion” and must identify “those portions
of [the record] . . . which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the movant does so, the nonmovant must respond by
submitting evidentiary materials that set out “specific
facts showing that there is a genuine issue for trial.”
Id. at 324 (quotation marks omitted). “On a
motion for summary judgment, ‘facts must be viewed in
the light most favorable to the nonmoving party only if there
is a genuine dispute as to those facts.'” Ricci
v. DeStefano, 557 U.S. 557, 586 (2009) (quoting
Scott v. Harris, 550 U.S. 372, 380 (2007) (internal
quotation marks omitted)).
their motion, the Medical Defendants argue that
Plaintiff's claims against them must be dismissed because
Plaintiff failed to exhaust administrative remedies prior to
his initial filing of the case. The Prison Litigation Reform
Act (“PLRA”) 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.” 42 U.S.C. § 1997e(a). See also
Porter v. Sturm, 781 F.3d 448, 451 (8th Cir. 2015)
(“An inmate must exhaust all available administrative
remedies before bringing a § 1983 suit.”). To
properly exhaust available administrative remedies, prisoners
must “complete the administrative review process in
accordance with the applicable procedural rules.”
Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting
Woodford v. Ngo, 548 U.S. 81, 88 (2006)). Those
rules “are defined not by the PLRA, but by the prison
grievance process itself.” Id.; accord
Burns v. Eaton, 752 F.3d 1136, 1141 (8th Cir. 2014).
“An inmate satisfies § 1997e(a) by pursuing
‘the prison grievance process to its final stage'
to ‘an adverse decision on the merits.'”
Porter, 781 F.3d at 451 (quoting Burns, 752
F.3d at 1141). “Nonexhaustion is an affirmative
defense, and defendants have the burden of raising and
proving the absence of exhaustion.” Id. at 451
(citing Jones, 549 U.S. at 211-12).
Eighth Circuit has made it clear that exhaustion of
administrative remedies under the PLRA must have occurred
before the lawsuit was initially filed; it is not sufficient
for the prisoner to exhaust his or her administrative
remedies after filing suit. Johnson v. Jones, 340
F.3d 624, 627 (8th Cir. 2003). In Johnson, the
Eighth Circuit stated:
Under the plain language of section 1997e(a), an inmate must
exhaust administrative remedies before filing suit
in federal court. Thus, in considering motions to dismiss for
failure to exhaust under section 1997e(a), the
district court must look to the time of filing, not the time
the district court is rendering its decision, to determine if
exhaustion has occurred. If exhaustion was not completed at
the time of filing, dismissal is mandatory.
340 F.3d at 627 (emphasis added). See also Harrison v.
Sachse, No. 4:15-CV-631-AGF, 2016 WL 728306, at *3-4
(E.D. Mo. Feb. 24, 2016) (relying on Johnson to
dismiss a complaint where the plaintiff exhausted his
administrative remedies only after the filing of his
complaint; stating, “It does not matter if the
plaintiff was able to fully exhaust ...