DWAYNE BOWMAN, Plaintiff, v. WILLIAM S. HAYNES, Warden Huttonsville Correctional Center; JIM RUBENSTEIN, Commissioner, West Virginia Department of Corrections, in their official and individual capacities; PAT GRAHAM, Counselor; ALBERT FORDYCE, Counselor, in their individual capacities, Defendants.

Civil Action No. 2:02 CV 36 (Maxwell)

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

282 F. Supp. 2d 488; 2003 U.S. Dist.

June 25, 2003, Decided
June 25, 2003, Filed; June 25, 2003, Entered


SUBSEQUENT HISTORY: Affirmed by Bowman v. Haynes, 2004 U.S. App. (4th Cir. W. Va., Mar. 16, 2004)

DISPOSITION: [**1] Defendants' motion for summary judgment granted. Plaintiff's complaint dismissed without prejudice for failure to exhaust his administrative remedies. Civil action stricken from docket of court.


COUNSEL: For Plaintiff: Roger Forman, Forman & Huber, L.C., Charleston, WV.

For Defendant: Jeffrey K. Phillips, Steptoe & Johnson, Charleston, WV.

JUDGES: Robert E. Maxwell, United States District Judge.

OPINION BY: Robert E. Maxwell

OPINION:
[*488] ORDER
Plaintiff, a state prisoner proceeding pro se in the above-styled civil rights action, seeks to pursue his remedies in this Court pursuant to 42 U.S.C. 1983. n1 It will be recalled that on February 6, 2003, Defendants filed a Motion for Summary Judgment. However, by joint, agreed Order submitted to the Court, and entered by the [*489] Court on March 3, 2003, Defendants West Virginia Division of Corrections, William Haynes and Jim Rubenstein were dismissed with prejudice from the above-styled case. Also, the March 3, 2003, Order dismissed the negligence claim against all defendants. Thus, left pending before the Court on Defendants' Motion for Summary Judgement are the claims against Defendants Pat Graham and Albert Fordyce, in their [**2] individual capacities, for alleged violations of Plaintiff's Eight Amendment rights. Plaintiff filed a Response to Defendants' Motion for Summary Judgment on February 25, 2003. On March 4, 2003, Defendants filed a reply. Discovery mandatory. Booth v. Churner, 532 U.S. 731, 741, 149 L. Ed. 2d 958, 121 S. Ct. 1819 (2001). While the phrase "with respect to prison conditions" is not defined in 42 U.S.C. § 1997e, the Supreme Court has recently determined that the "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, 152 L. Ed. 2d 12, 122 S. Ct. 983 (2002). n2 Moreover, exhaustion is even required when the relief the prisoner seeks, such as monetary damages, [*490] is not available. Booth, 532 U.S. at 741. Additionally, district courts should enforce the exhaustion requirement sua sponte if not raised by the prisoner. Brown v. Toombs, 139 F.3d 1102 (6th Cir. 1998). The PLRA requires the complaint to be dismissed until [**3] the record demonstrates on its face that the prisoner has exhausted his administrative remedies. Brown, 42 U.S.C. § 1997e(a). The actions of the defendants regarding alleged failure to protect clearly constitute actions "with respect to prison conditions" within the meaning of the PLRA and the requirement of exhaustion of administrative remedies applies to those actions and the alleged effects of those actions.

n1 Plaintiff alleges that Defendants failed to provide reasonable safety for the plaintiff in violation of the Eighth Amendment of the United states Constitution. Plaintiff also alleged the tort of negligence.

n2 In Porter, an inmate sued the correctional officers who had severely beaten him. The inmate alleged that the correctional officers placed him against a wall and struck him with their hands, kneed him in the back, [and] pulled his hair." Porter, 534 U.S. 516, 152 L. Ed. 2d 12, 122 S. Ct. 983.

The West Virginia Department of Corrections has [**4] established a three level grievance process for prisoners to grieve their complaints in an attempt to resolve the prisoners' issues. The first level involves filing a G-1 Grievance Form with the Unit Supervisor or appropriate Staff Supervisor. If the inmate receives no response or is unsatisfied with the response received at Level One, the inmate may proceed to Level Two by filing a G-2 Grievance Form with the warden/administrator. Finally, the inmate may appeal the Level 2 decision to the Commissioner of the Division of Corrections.
Bowman has offered no evidence that he pursued his complaints through all three steps of the grievance process, and it is therefore an undisputed fact that he did not. Consequently, there is no genuine issue as to any material fact and the Defendants are entitled to summary judgment as a matter of law for Plaintiff's failure to exhaust administrative remedies.
Accordingly, it is
ORDERED that the Defendants' Motion for Summary Judgment be, and the same hereby is, GRANTED. It is further
ORDERED that the Plaintiff's complaint be, and the same hereby is, DISMISSED WITHOUT PREJUDICE for failure to exhaust his administrative remedies [**5] and the Clerk shall enter judgment for the Defendants. It is further
ORDERED that the above-styled civil action be, and the same hereby is, STRICKEN from the docket of this Court. It is further
ORDERED that, if Plaintiff should desire to appeal the decision of this Court, written notice of appeal must be received by the Clerk of this Court within thirty (30) days from the date of the entry of the Judgment Order, pursuant to Rule 4, Federal Rules of Appellate Procedure. The $ 5.00 filing fee for the notice of appeal and the $ 100.00 docketing fee should also be submitted with the notice of appeal. In the alternative, at the time the notice of appeal is submitted, Plaintiff may, in accordance with the provisions of Rule 24(a), Federal Rules of Appellate Procedure, seek leave to proceed in forma pauperis from the United States Court of Appeals for the Fourth Circuit.
The Clerk of Court is directed to send a certified copy of this Order to all counsel of record.
ENTER: June 25th, 2003
Robert E. Maxwell
United States District Judge