Becker v. Montgomery

43 F. App'x 914
Court of Appeals for the Sixth Circuit·Decided August 13, 2002·No. No. 99-4190·Published·Cited by 3 cases

Opinion

ORDER

This pro se Ohio state prisoner appeals a district court judgment dismissing his civil rights complaint filed pursuant to 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).

Seeking twelve million dollars in damages and injunctive relief, Dale G. Becker sued the Ohio Attorney General (Betty Montgomery), two former wardens and the current warden at Ohio’s Chillicothe Correctional Institution (Fred McAninch, Gary Mohr, and Michael Randall), and seven employees of that institution (Mai Payne, Kay Carneine, L.C. Coval, Ernie Moore, Bobbie McKeever, Danny Pfeifer, and Kenneth G. Eberts) in their official and individual capacities. Becker claimed that he has been exposed to second-hand cigarette smoke (or environmental tobacco smoke — “ETS”) while incarcerated at the Chillicothe Correctional Institution.

The district court dismissed the complaint because Becker failed to exhaust his prison administrative remedies and because the complaint failed to state a claim for relief against any named defendant. Becker appealed. Initially, Becker’s appeal was dismissed for want of jurisdiction. Thereafter, however, the Supreme Court reversed the court’s judgment and remanded the case, whereupon this court recalled mandate, vacated the order dismissing the appeal, and reinstated the appeal to the active docket.

In his timely appeal, Becker argues that he has exhausted available prison administrative remedies, and he essentially reasserts the claims set forth in the district court.

Initially, we note that Becker’s claims concerned events and prison officials at the Chillicothe Correctional Institution. Becker has been transferred to the Ross Correctional Institution. A prisoner’s request for injunctive and declaratory relief from corrections officials is moot upon his transfer to a different facility. Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir.1996). Thus, to the extent that Becker’s request for injunctive relief concerns incidents that did not occur at his current facility, the request is not reviewable, as it is now moot.

In addition, upon review we conclude that Becker has not met his burden of showing that he has exhausted his administrative remedies. Becker contends that he has exhausted his administrative remedies and attached as exhibits several grievance letters he has written to the Inspector at the Chillicothe Correctional Institution regarding whether he was on a list for a non-smoking dorm. However, all but one of those letters was sent to the [916] inspector more than two years before Becker filed his complaint in the district court. The applicable statute of limitations in Ohio is two years. Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir.1989) (en banc). The only grievance letter within the relevant two-year period requested information regarding the criteria for getting into the non-smoking dorm. The response to that letter indicated that the prison should put together a set of rules for the non-smoking dorm. The record does not reveal that Becker appealed from this disposition of his grievance. Under 42 U.S.C. § 1997e(a), a prisoner must exhaust his available administrative remedies before filing a § 1983 action in federal court, see Broum v. Toombs, 139 F.3d 1102, 1103-04 (6th Cir.1998), and the prisoner has the burden of demonstrating that he has exhausted these remedies. See id. at 1104. To establish that he has exhausted his remedies prior to filing suit, a prisoner should attach to his § 1983 complaint, if available to him, any decision demonstrating the administrative disposition of his claims. See Wyatt v. Leonard, 193 F.3d 876, 878-79 (6th Cir.1999).

Aji administrative remedy was available to Becker, see Ohio Administrative Code § 5120-9-31(H)(8), and he has offered nothing to demonstrate that he exhausted his available administrative remedy, or that he was precluded from exhausting it. Becker must pursue all levels of administrative review to fully exhaust his claim and he cannot claim exhaustion when he abandoned this process before its completion. See Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir.1999). He has not attached to his complaint any decision demonstrating the administrative disposition of his claim. Therefore, Becker has not met his burden of showing that he exhausted available administrative remedies, or that he was precluded from exhausting such remedies.

Even though Becker has not fully exhausted an available state remedy, his complaint need not be remanded to the district court for dismissal without prejudice. In the event that a claim is, on its face, frivolous or fails to state a claim upon which relief can be granted, the court may dismiss the underlying claim, as the district court did, without first requiring the exhaustion of administrative remedies pursuant to 42 U.S.C. § 1997e(c)(2). Brown, 139 F.3d at 1103.

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Becker v. Montgomery, 43 F. App'x 914 (6th Cir. 2002).

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