Johnny McGowan v. Jimmy Farr II ( 2001 )


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  •                  IN THE COURT OF APPEALS OF TENNESSEE
    AT KNOXVILLE
    Assigned on Briefs August 10, 2001 Session
    JOHNNY MCGOWAN v. JIMMY FARR II, ET AL.
    Appeal from the Chancery Court for Morgan County
    No. 00-49   Frank V. Williams, III, Chancellor
    FILED AUGUST 30, 2001
    No. E2000-02519-COA-R3-CV
    Johnny McGowan (“Plaintiff”), an inmate at the Brushy Mountain Correctional Complex filed this
    lawsuit against the various defendants alleging violations of federal and state law after medication
    was confiscated from his cell. Plaintiff improperly filed a grievance which was returned to him with
    instructions on how to properly process same. Instead of refiling the grievance in accordance with
    proper procedure, Plaintiff filed this lawsuit. The Trial Court granted summary judgment to the
    defendants. We affirm, concluding that Plaintiff failed to exhaust his administrative remedies which
    bars all of his claims.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the
    Chancery Court Affirmed; Case Remanded.
    D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HOUSTON M. GODDARD , P.J.,
    and HERSCHEL P. FRANKS , J., joined.
    Johnny McGowan, Petros, Tennessee, pro se Appellant.
    Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Dawn
    Jordan, Assistant Attorney General, Nashville, Tennessee, for the Appellees Kevin Allen, Anita Pope
    Cook, Larry Brown, Eddie Duncan, and Ronald Koons.
    K.O. Herston, Knoxville, Tennessee, for the Appellee Jimmy Farr, II.
    OPINION
    Background
    This is a lawsuit filed by Plaintiff, currently an inmate at Brushy Mountain
    Correctional Complex (“Complex”) in Petros, Tennessee. Plaintiff, who is proceeding in forma
    pauperis, alleges that on February 21, 2000, several of the defendants conducted a routine search of
    his cell while he was in the shower. During the search, a large plastic bag containing prescription
    medication was discovered. While the bag had Plaintiff’s name and number on it, it contained a
    different type of medication than what was listed on the label. The bag and its contents were then
    confiscated “because the medication in the bag was not in its original container.”1 Once it was
    determined that the medication found in the bag was prescribed for Plaintiff, the defendants claim
    the medication was returned to Plaintiff that same afternoon. Plaintiff claims, however, that some
    of the medication was missing.
    Approximately seventeen days prior to the events mentioned above, a memorandum
    was placed on the bulletin boards at the Complex. The memorandum was addressed to “All
    Inmates” and was from Defendant Anita Pope, Grievance Chairperson, and was issued through
    David Mills, the Warden at the Complex. Both Mr. Mills and Ms. Pope initialed the memorandum.
    The memorandum states:
    REGARDING: Grievance Procedures
    Beginning this date, all grievances which are improperly processed by
    being sent to the Warden first, will be returned to the grievant for
    proper processing. Sending the grievance to any person other than the
    grievance chairperson, delays the timely processing of the grievance.
    Please remember, grievances are to be placed in the grievance box in
    your unit by the grievant unless the grievance is considered an
    emergency. If the grievant feels that the grievance is an emergency
    then he may hand the grievance to a member of the unit team.
    On February 21, 2000, Plaintiff attempted to file a grievance with regard to the
    confiscation of his medication the previous day. Contrary to the express prohibitions in the above
    memorandum, Plaintiff submitted the grievance directly to the Warden. Four days later, the
    grievance was returned to Plaintiff because he did not follow the proper procedure. Plaintiff was
    instructed on how to properly file the grievance in accordance with the memorandum. Plaintiff did
    not pursue the grievance any further. The Affidavit of Defendant Anita Pope states:
    1
    The ma terial facts are und isputed and are taken in large part from b oth Plaintiff’s and Defenda nts’ statements
    of undispute d facts subm itted in suppo rt of and in op position to D efendants’ m otions for sum mary judgm ent.
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    Allegations of staff misconduct are grievable through
    established policies and procedures. Inmate McGowan did fill out an
    inmate grievance form making such an allegation, but he did not
    submit the grievance as per those established policies and procedures.
    Instead of placing the form in the grievance box, or handing the forms
    to a member of the unit team, inmate McGowan sent the grievance
    form directly to the warden. On February 25, 2000, Inmate
    McGowan’s grievance was returned to him with a memorandum
    informing him that he needs to follow the proper procedures if he
    wants to file a grievance. . . . Inmate McGowan has made no attempt
    to submit the above referenced grievance properly.
    Plaintiff then filed this lawsuit pursuant to 
    42 U.S.C. § 1983
     alleging various federal
    and state constitutional violations as well as violations “of the laws of the state of Tennessee”
    centering around the confiscation of his medication and Defendant Pope’s failing to process the
    grievance. On the same day that Plaintiff filed the grievance (February 21, 2000), a disciplinary
    report was filed against him which alleged that Plaintiff assaulted a guard. Plaintiff was found guilty
    of the assault by the Disciplinary Board on April 3, 2000. Plaintiff admits that he did not appeal this
    decision and it has not otherwise been overturned. In his Complaint, however, Plaintiff alleges that
    the claimed assault never occurred and the allegations were a fabrication made against him in
    retaliation for his filing the grievance.
    Defendants filed motions for summary judgment. The Trial Court granted the
    motions, stated that “[a]fter reviewing the case file, and the pleadings therein . . . this Court is of the
    opinion that the Motion . . . is well taken, and is therefore GRANTED.”
    Discussion
    The standard for review of a motion for summary judgment is set forth in Staples v.
    CBL & Associates, Inc., 
    15 S.W.3d 83
     (Tenn. 2000):
    The standards governing an appellate court’s review of a
    motion for summary judgment are well settled. Since our inquiry
    involves purely a question of law, no presumption of correctness
    attaches to the lower court’s judgment, and our task is confined to
    reviewing the record to determine whether the requirements of Tenn.
    R. Civ. P. 56 have been met. See Hunter v. Brown, 
    955 S.W.2d 49
    ,
    50-51 (Tenn. 1997); Cowden v. Sovran Bank/Central South, 
    816 S.W.2d 741
    , 744 (Tenn. 1991). Tennessee Rule of Civil Procedure
    56.04 provides that summary judgment is appropriate where: (1) there
    is no genuine issue with regard to the material facts relevant to the
    claim or defense contained in the motion, see Byrd v. Hall, 
    847 S.W.2d 208
    , 210 (Tenn. 1993); and (2) the moving party is entitled
    -3-
    to a judgment as a matter of law on the undisputed facts. See
    Anderson v. Standard Register Co., 
    857 S.W.2d 555
    , 559 (Tenn.
    1993). The moving party has the burden of proving that its motion
    satisfies these requirements. See Downen v. Allstate Ins. Co., 
    811 S.W.2d 523
    , 524 (Tenn. 1991). When the party seeking summary
    judgment makes a properly supported motion, the burden shifts to the
    nonmoving party to set forth specific facts establishing the existence
    of disputed, material facts which must be resolved by the trier of fact.
    See Byrd v. Hall, 
    847 S.W.2d at 215
    .
    To properly support its motion, the moving party must either
    affirmatively negate an essential element of the non-moving party’s
    claim or conclusively establish an affirmative defense. See McCarley
    v. West Quality Food Serv., 
    960 S.W.2d 585
    , 588 (Tenn. 1998);
    Robinson v. Omer, 
    952 S.W.2d 423
    , 426 (Tenn. 1997). If the moving
    party fails to negate a claimed basis for the suit, the non-moving
    party’s burden to produce evidence establishing the existence of a
    genuine issue for trial is not triggered and the motion for summary
    judgment must fail. See McCarley v. West Quality Food Serv., 
    960 S.W.2d at 588
    ; Robinson v. Omer, 
    952 S.W.2d at 426
    . If the moving
    party successfully negates a claimed basis for the action, the non-
    moving party may not simply rest upon the pleadings, but must offer
    proof to establish the existence of the essential elements of the claim.
    The standards governing the assessment of evidence in the
    summary judgment context are also well established. Courts must
    view the evidence in the light most favorable to the nonmoving party
    and must also draw all reasonable inferences in the nonmoving
    party’s favor. See Robinson v. Omer, 
    952 S.W.2d at 426
    ; Byrd v.
    Hall, 
    847 S.W.2d at 210-11
    . Courts should grant a summary
    judgment only when both the facts and the inferences to be drawn
    from the facts permit a reasonable person to reach only one
    conclusion. See McCall v. Wilder, 
    913 S.W.2d 150
    , 153 (Tenn.
    1995); Carvell v. Bottoms, 
    900 S.W.2d 23
    , 26 (Tenn. 1995).
    Staples, 
    15 S.W.3d at 88-89
    . A fact is “material” for summary judgment purposes, if it “must be
    decided in order to resolve the substantive claim or defense at which the motion is directed.” Luther
    v. Compton, 
    5 S.W.3d 635
    , 639 (Tenn. 1999)(quoting Byrd v. Hall, 
    847 S.W.2d at 211
    ).
    Both federal and state law require prisoners to exhaust their administrative remedies
    prior to filing an action in a court of law. 
    Tenn. Code Ann. § 41-21-806
     provides, in relevant part:
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    (a) An inmate who files a claim that is subject to review by
    the grievance committee established by the department shall file with
    the court an affidavit stating the date that the grievance was filed and
    the date the final decision was received by the inmate with a copy of
    the final decision from the grievance committee.
    ****
    (c) If a claim is filed before the grievance procedure is
    complete, the court shall stay the proceeding with respect to the claim
    for a period not to exceed ninety (90) days to permit completion of
    the grievance procedure.
    This statute “serves to help ensure that all administrative remedies have been exhausted prior to the
    exercise of judicial review.” Sweatt v. Campbell, No. 02A01-9808-CV-00227, 
    1999 WL 95978
     at
    *3 (Tenn. Ct. App. Feb. 25, 1999). See also Allen v. Lloyd, No. M1999-01739-COA-R3-CV, 
    2000 WL 775085
     at *3 (Tenn. Ct. App. June 16, 2000)(“
    Tenn. Code Ann. § 41-21-806
     creates a
    procedural requirement which was designed to further the goal of making sure that an inmate who
    is filing in forma pauperis has pursued his administrative remedies to a conclusion before enlisting
    the aid of the courts in resolving a problem . . . .”).
    Federal law also requires exhaustion of administrative remedies before filing a lawsuit
    under any federal law. As stated by this Court in Sweatt:
    Section 1997e (a) of Title 42 to the United States Code, as amended
    by the Prison Litigation Reform Act of 1996, establishes 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.S. § 1997e (a) (Supp. 1998)
    (emphasis added). "In light of the plain mandatory language of the
    statute regarding exhaustion of remedies, the legislative purpose
    underlying the plain language, and the sound policy on which it is
    based, . . . prisoners filing . . . cases involving prison conditions must
    allege and show that they have exhausted all available state
    administrative remedies." Brown v. Toombs, 
    139 F.3d 1102
    , 1104
    (6th Cir.1998) (emphasis added). See also White v. McGinnis, 
    131 F.3d 593
     (6th Cir.1997) (holding that a district court's sua sponte
    dismissal of a prisoner's civil rights suit, which sought declaratory
    and injunctive relief and compensatory and punitive damages against
    several individual defendants, was proper where the prisoner filed an
    administrative grievance regarding his claims, but did not pursue an
    administrative appeal of the denial of the grievance).
    -5-
    Sweatt v. Campbell, 
    1999 WL 95978
     at * 3.
    In the present case, the Inmate Grievance Procedures (“Procedures”) specifically
    provide that grievances which are improperly completed or contain insufficient information for
    processing shall be returned to the inmate with instructions how to properly complete the grievance.
    The Procedures also provide several levels of administrative review of grievances. In addition, the
    February 4th memorandum specifically addresses the impropriety of serving grievances directly on
    the Warden and unequivocally states that if this happens, the grievance “will be returned to the
    grievant for proper processing.” Plaintiff’s grievance was returned to him for failure to follow this
    procedure and it was explained to him what he needed to do to properly file the grievance. Instead
    of filing the grievance in accordance with the proper procedure, he voluntarily chose not to pursue
    his grievance any further and to file this lawsuit. Plaintiff’s calling his grievance an “emergency”
    does not invalidate the need to file the grievance properly. 2 The Procedures provide for the
    expedited handling of emergency grievances, but do not abolish proper procedures for filing such
    grievances. Based on these facts, we conclude as a matter of law that Plaintiff failed to properly
    exhaust his administrative remedies and therefore his claims regarding the confiscation of his
    medicine were properly dismissed under both federal and state law.3
    Next, we address Plaintiff’s claim that Ms. Pope violated federal and state law by
    improperly refusing to process his grievance. The Procedures define what is grievable to include,
    among other things, “any single behavior or action toward an inmate by staff . . . or any condition
    or incident within the department or institution which personally affects the inmate complainant.”
    We believe that the alleged conduct of Ms. Pope falls squarely within what is considered grievable.
    Since no grievance was filed with regard to Ms. Pope’s alleged actions, Plaintiff failed to exhaust
    his administrative remedies prior to filing suit against Ms. Pope and this claim, therefore, properly
    was dismissed. Based on this conclusion, we pretermit the issue of whether Plaintiff states a cause
    of action against Ms. Pope, even assuming his conclusory allegations are true. See, e.g., Overholt
    v. Unibase Data Entry, Inc., 
    221 F.3d 1335
     (Table), 
    2000 WL 799760
     (6th Cir. 2000)(unpublished),
    which involved a lawsuit by an inmate at the Lebanon Correctional Institute. Rejecting the
    plaintiff’s federal constitutional claim, the Overholt Court pointed out that the “defendants were not
    obligated to ‘properly’ respond to [plaintiff’s] grievances because there is no inherent constitutional
    right to an effective prison grievance procedure. See Flick v. Alba, 
    932 F.2d 728
    , 729 (8th Cir. 1991).
    Hence, his allegations that the defendants did not properly respond to his grievances simply do not
    rise to the level of a constitutional violation.” Overholt, 
    2000 WL 799760
     at **3. See also Reid v.
    Lutche, No. M1997-00229-COA-R3-CV, 
    2001 WL 55783
     at *4 (Tenn. Ct. App. Jan. 24,
    2001)(“Because prisoners have no constitutional stake in grievance procedures … violations of
    grievance procedures do not affect a prisoner’s constitutional rights.” (citations omitted).
    2
    We need not decide whether Plaintiff’s grievance was actually an “emergency”. We note, however, that
    sectio n 501.
    01 F. 2
    . of the Procedures provides that the “determination that a grievance is not an emergency may b e
    appealed through normal grievance procedures.”
    3
    Plaintiff does not argue that refiling the grievance would have been futile. Such an arg ument has b een flatly
    rejected u nder fede ral law. See Massey v. Wheeler, 
    221 F.3d 1030
     (7 th Cir. 2000).
    -6-
    As to Plaintiff’s retaliation claim, the Procedures specifically state that such claims
    are grievable. In particular, section 501.
    01 C. 6
    . states that:
    The good faith use of, or good faith participation in, the grievance
    process will not result in formal or informal reprisals against an
    inmate. An inmate shall be entitled to pursue, through the grievance
    procedure, a complaint that a reprisal occurred as the result of the
    filing of a prior grievance.
    Since no grievance was ever filed with respect to the retaliation claim, we likewise
    hold that this claim properly was dismissed for Plaintiff’s failure to exhaust his administrative
    remedies.
    Because of our conclusion that Plaintiff failed to exhaust his administrative remedies,
    all remaining issues raised by the parties are pretermitted.
    Conclusion
    The judgment of the Trial Court is affirmed. This case is remanded to the Trial Court
    for further proceedings as may be required, if any, consistent with this Opinion, and for collection
    of costs below. Costs of appeal are taxed to the Appellant Johnny McGowan and his surety, if any.
    ____________________________________
    D. MICHAEL SWINEY
    -7-