                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



ROBERT LEE JOHNSON,

       Plaintiff,
               v.                                         Civil Action No. 11-1445 (JEB)
THE DISTRICT OF COLUMBIA, et al.,

       Defendants.


                                  MEMORANDUM OPINION

       Following his arrest, Plaintiff Robert Lee Johnson was held in the District of Columbia’s

Central Detention Facility, also known as the D.C. Jail, from April through August 2010. While

at CDF, Plaintiff claims to have been assaulted by correctional officers and fellow inmates in

retaliation for having informed a security guard about a smuggling network operating within the

Jail. Plaintiff’s Complaint alleges that the District violated his Eighth Amendment rights and

that, together with co-Defendant Corrections Corporation of America, manager of CDF, it

committed various common-law torts, including negligence, assault and battery, and intentional

infliction of emotional distress. The District has now filed a Motion to Dismiss or, in the

alternative, for Summary Judgment on a number of grounds, including Plaintiff’s failure to

exhaust administrative remedies required by the Prison Litigation Reform Act. As the Court

agrees that Plaintiff failed to properly exhaust – and failed to show that he was otherwise

excused from exhaustion – the Court will dismiss his sole federal claim. Having done so, the

Court declines to exercise supplemental jurisdiction over Plaintiff’s state-law claims, which he

may refile in the appropriate state court.



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I.      Background

        According to the Complaint, which the Court must presume true for purposes of this

Motion, Plaintiff was held at the Jail for a period of four months following his arrest. See

Compl., ¶¶ 1, 14. While detained, Johnson “discovered that his cellmate was part of an

organized network of [correctional officers] and prisoners who regularly smuggled contraband”

into the facility. Id., ¶ 15. Plaintiff informed a security guard about the smuggling scheme, see

id., ¶ 21, and shortly thereafter began receiving threats from individuals involved with the

smuggling ring. See id., ¶ 23. The retaliation soon escalated, including a physical attack;

“[d]uring the attack, Plaintiff was beaten while handcuffed and, at one point during the beating,

one of the [correctional officers] urinated into a cup and threw the urine into Plaintiff’s face.”

Id., ¶ 26.

        Plaintiff did not file a grievance related to the incident, Opp., Exh. 1 (Affidavit of Robert

Lee Johnson), ¶ 13; however, he claims that the Warden, Simon Wainwright, “watched my being

beaten by the [correctional officers] on videotape,” id., ¶ 8, and later apologized to Plaintiff for

what had taken place. Id. Plaintiff claims that the Warden “told [him] that the matter would be

handled,” id., but “he never told me anything about a process where I needed to file a complaint

against the [correctional officers].” Id.

        Plaintiff experienced a second attack soon after the first, in which he was stabbed twice.

See Compl., ¶ 28. Plaintiff’s mother learned of the beatings from a letter she received from

another prisoner; concerned with her son’s welfare, she attempted to visit the facility, but was

turned away. See id., ¶¶ 29-30. Ultimately, she was permitted to see him and witnessed bruising

and injuries on her son’s body. See id., ¶ 35. Plaintiff’s mother returned on another occasion,

and while waiting to meet with her son, correctional officers sprayed him with water bottles



                                                  2
filled with a mixture of urine and feces and refused to allow him to wash off. See id., ¶¶ 37-38.

Plaintiff claims that he was subjected to such treatment – in addition to the beatings – on

“numerous occasions.” See id., ¶¶ 41-42. Plaintiff never pursued the facility’s grievance

process to remedy any of these incidents. Johnson Aff., ¶ 13. He attributes his inaction to the

failure of any staff at the facility to alert him to a “process where [he] could complain about what

the [correctional officers] were doing to me,” id., ¶ 9, despite the fact that he “complained

repeatedly to various individuals about how I was being treated at CDF.” Id., ¶ 11. “As a result,

for the entire time I was at CDF, I had no knowledge of any process that I needed to follow to

complain about how I was treated by the [correctional officers].” Id., ¶ 13. Further, Johnson

attributes his failure to file a grievance to his inability to read, id., ¶ 14, and to having been

“diagnosed with bipolar disorder” and “assessed to be near the borderline of mental retardation.”

Compl., ¶ 12.

        Plaintiff named as Defendants both the District and Corrections Corporation of America

(CCA), which manages the D.C. Jail. Id., ¶¶ 2, 4, 5. He asserts five causes of action: a

42 U.S.C. § 1983 claim for violation of the Eighth Amendment against the District only (Count

I) and common-law counts against both Defendants of negligence (Count II), assault and battery

(Count III), intentional infliction of emotional distress (Count IV), and negligent infliction of

emotional distress (Count V). The District has now filed a Motion to Dismiss or, in the

alternative, for Summary Judgment.

II.     Legal Standard

        In moving to dismiss Count I (§ 1983), the District argues that Plaintiff failed to exhaust

available administrative remedies prior to filing the instant civil action. See Mot. at 6-7. The

Prison Litigation Reform Act (PLRA) exhaustion requirement, however, is not a jurisdictional



                                                    3
bar, Woodford v. Ngo, 548 U.S. 81, 101 (2006); Ali v. Dist. of Columbia, 278 F.3d 1, 5-6 (D.C.

Cir. 2002); instead, it operates as “‘an affirmative defense that the defendants have the burden of

pleading and proving.’” Brengettcy v. Horton, 423 F.3d 674, 682 (7th Cir. 2005) (quoting Dale

v. Lappin, 376 F .3d 652, 655 (7th Cir. 2004)); Anderson v. XYZ Correctional Health Servs.,

Inc., 407 F.3d 674, 681 (4th Cir. 2005) (“[A]n inmate’s failure to exhaust his administrative

remedies must be viewed as an affirmative defense that should be pleaded or otherwise properly

raised by the defendant.”); Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) (holding that

“nonexhaustion under § 1997e(a) . . . does not impose a pleading requirement,” but “creates a

defense [such that] defendants have the burden of raising and proving the absence of

exhaustion”), cert. denied sub nom, Alameida v. Wyatt, 540 U.S. 810 (2003); Jackson v. Dist. of

Columbia, 89 F. Supp. 2d 48, 56 (D.D.C. 2000) (holding that exhaustion under § 1997e(a) is an

affirmative defense), vacated in part on other grounds, 254 F.3d 262 (D.C. Cir. 2001).

       Accordingly, a Rule 12(b)(6) motion to dismiss for “failure to state a claim upon which

relief can be granted” or a Rule 56 motion for summary judgment, rather than a Rule 12(b)(1)

jurisdictional motion, are the appropriate vehicles to challenge an alleged failure to exhaust

administrative remedies under the PLRA. Lopez v. Huff, 508 F. Supp. 2d 71, 75 n.4 (D.D.C.

2007) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)). “District courts may refer to materials

outside the pleadings in resolving a 12(b)(6) motion. But when they do, they must also convert

the motion to dismiss into one for summary judgment.” Kim v. United States, 632 F.3d 713, 719

(D.C. Cir. 2011) (citing Fed. R. Civ. P. 12(d)). Because both Defendant and Plaintiff have

submitted, and the Court has considered, matters outside of the pleadings, the Court treats

Defendant’s Motion as one for summary judgment under Rule 56. Yates v. Dist. of Columbia,

324 F.3d 724, 725 (D.C. Cir. 2003) (motion to dismiss under Rule 12(b)(6) converted to



                                                 4
summary judgment motion under Rule 56 where parties submitted and magistrate judge

considered matters outside the pleadings). Indeed, Plaintiff has not objected to such conversion

or claimed any prejudice therefrom. See Opp. at 3-4; see also Brown v. Dorsey & Whitney, 267

F. Supp. 2d 61, 68 (D.D.C. 2003) (court converted 12(b)(6) motion to one for summary

judgment where “the parties will not be prejudiced by the Court’s consideration of matters

outside the pleadings . . .”).

        Summary judgment may be granted 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 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.

Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the

substantive outcome of the litigation. Holcomb, 433 F.3d at 895; Liberty Lobby, Inc., 477 U.S.

at 248. A dispute is “genuine” if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby,

Inc., 477 U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is

genuinely disputed must support the assertion by citing to particular parts of materials in the

record.” Fed. R. Civ. P. 56(c)(1)(A).

        When a motion for summary judgment is under consideration, “the evidence of the non-

movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Liberty

Lobby, Inc., 477 U.S. at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006);

Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). On a motion for

summary judgment, the Court must “eschew making credibility determinations or weighing the

evidence.” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007). The nonmoving party’s

opposition, however, must consist of more than mere unsupported allegations or denials and



                                                 5
must be supported by affidavits, declarations, or other competent evidence, setting forth specific

facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp. v.

Catrett, 477 U.S. 317, 324 (1986). The nonmovant is required to provide evidence that would

permit a reasonable jury to find in its favor. Laningham v. United States Navy, 813 F.2d 1236,

1242 (D.C. Cir. 1987). If the nonmovant’s evidence is “merely colorable” or “not significantly

probative,” summary judgment may be granted. Liberty Lobby, Inc., 477 U.S. at 249-50.

III.   Analysis

       The District raises a number of challenges to the claims set forth in the Complaint, but

the Court need only address its argument that Plaintiff’s § 1983 claim is barred by the PLRA

because he failed to exhaust his administrative remedies. See Mot. at 6-7; Reply at 1-5.

Plaintiff, in fact, acknowledges that he did not do so. Opp. at 4. Once Defendant has shown that

Plaintiff failed to exhaust his administrative remedies, the burden shifts to Plaintiff to establish

that a failure to exhaust was due to the unavailability of remedies. See Tuckel v. Grover, 660

F.3d 1249, 1254 (10th Cir. 2011) (“Once a defendant proves that a plaintiff failed to exhaust,

however, the onus falls on the plaintiff to show that remedies were unavailable to him . . . .”); see

also Opp. at 7 (Plaintiff himself acknowledging that “if the trier of fact found that the grievance

process was available to Plaintiff, Plaintiff’s § 1983 claim would necessarily fail”). Plaintiff

seeks to excuse his failure to exhaust, accordingly, by establishing that the facility’s grievance

process was unavailable to him because of 1) his mental incompetency and 2) the failure of staff

to inform him of the process. See Opp. at 4.

       The Court ultimately finds that there is no material factual dispute as to the availability of

the grievance process to Plaintiff under either of these arguments and will thus dismiss Count I.

Having dispensed with Plaintiff’s only federal claim, the Court will next determine whether to



                                                  6
exercise supplemental jurisdiction over Plaintiff’s remaining state-law claims. As the Court

declines to do so, it will dismiss the case without prejudice.

       A. Count I: Administrative Exhaustion

       In relevant part, the PLRA provides: “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). Section 1997e(a) “afford[s] corrections officials time and

opportunity to address complaints internally before allowing the initiation of a federal case” and,

where possible, to “satisfy the inmate, thereby obviating the need for litigation.” Porter v.

Nussle, 534 U.S. 516, 524-25 (2002). The exhaustion requirement is mandatory and “applies to

all prisoners seeking redress for prison circumstances or occurrences.” Id. at 520; see Jones v.

Bock, 549 U.S. 199, 211 (2007). Exhaustion under the PLRA requires that a prisoner comply

with procedural rules, including filing deadlines, as a precondition to filing a civil suit in federal

court, regardless of the relief offered through the administrative process. See Woodford v. Ngo,

548 U.S. 81, 85 (2006); Booth v. Churner, 532 U.S. 731, 741 (2001). A prisoner may thus file a

§ 1983 action concerning the conditions of his confinement only after he has exhausted the

prison’s administrative remedies. See Jackson v. District of Columbia, 254 F.3d 262, 269 (D.C.

Cir. 2001).

       As Plaintiff notes, however, see Opp. at 5, the PLRA requires that an inmate exhaust only

those administrative remedies “as are available.” 42 U.S.C. § 1997e(a). “We have recognized

that the PLRA therefore does not require exhaustion when circumstances render administrative

remedies ‘effectively unavailable.’” Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010)

(internal citations omitted). In this case, Plaintiff argues that both his mental incompetence and



                                                   7
his ignorance of the administrative processes render the remedies “unavailable.” The Court will

address each contention in turn.

               1. Mental Incompetence

       Plaintiff first maintains that his “mental incompetence and ongoing victimization and

humiliation by Defendant demonstrate that the prison grievance process was absolutely

unavailable to him.” Opp. at 6. In so arguing, however, Plaintiff relies on language from

distinguishable, non-binding authorities. See id. at 4-7. The two cases that Plaintiff cites are, in

fact, contrary to the bulk of authority that has consistently held that individuals with disabilities

or mental illness must nonetheless comply with the PLRA’s exhaustion requirements. See, e.g.,

Smith v. Corr. Corp. of America, Inc., 92 Fed. Appx. 649, 650 (10th Cir. 2004) (affirming

district court’s determination that plaintiff was not excused from exhaustion despite fact that he

was receiving medication for a mental illness and was being housed in a mental health unit);

Calloway v. Grimshaw, No. 09-1354, 2011 WL 4345299, at *5 (N.D.N.Y. Aug. 10, 2011)

(inmate’s mental or emotional condition not a “special circumstance” preventing him from

exhausting his administrative remedies); Newman v. Duncan, No. 04-395, 2007 WL 2847304, at

*4 (N.D.N.Y. Sept. 26, 2007) (same); Clay v. Catero, No. 07-555, 2010 WL 891845 (W.D.

Mich. March 11, 2010) (noting that even if plaintiff had asserted his mental illness as an excuse

for failing to exhaust his administrative remedies, such an argument would fail); Howard v.

Pettiford, No. 07-887, 2007 WL 3119441, at *2 (D.S.C. Oct. 22, 2007 ) (court refused to excuse

plaintiff’s failure to exhaust based on his dyslexia and mental illness); Yorkey v. Pettiford, No.

07-1037, 2007 WL 2750068, at *4 (D.S.C. Sep. 20, 2007) (plaintiff’s mental illness did not

excuse his failure to exhaust); Goldenberg v. St. Barnabas Hosp., No. 01-7435, 2005 WL

426701, at *5 (S.D.N.Y. Feb. 23, 2005) (plaintiff’s assertion that he was physically and mentally



                                                  8
incapable of filing an administrative claim did not excuse him from PLRA’s exhaustion

requirements).

       Plaintiff points to two cases from other circuits to bolster his claim that “mental

incompetence” can support a finding that administrative remedies were unavailable. See Opp. at

5-6 (citing Braswell v. Corr. Corp. of America, 419 Fed. Appx. 622 (6th Cir. 2011), and

Whittington v. Sokol, 491 F. Supp. 2d 1012 (D. Colo. 2007)). Neither case is binding on this

Court, and the facts of each are arguably distinguishable from what occurred here. In Braswell,

the Sixth Circuit held that there was a material factual dispute as to the availability of the

grievance process where the plaintiff was diagnosed with schizophrenia and his condition had

deteriorated to the point where he was “speaking ‘gibberish’” and could not care for himself. Id.

at 624-626. “[G]iven the alleged deterioration of Horton’s mental state, there is some doubt that

Horton even knew that he needed mental health treatment—much less that he needed to

communicate that need to CCA personnel.” Id. at 625. Similarly, in Whittington, the court

found that the defendant had failed to carry its burden of demonstrating the plaintiff’s failure to

exhaust where the plaintiff presented evidence that he was “‘transferred to a mental institution 5

days after the [event upon which the claim was based]’ and ‘remained in the [p]sychiatric ward .

. . for approximately six month[s].’” 491 F. Supp. 2d at 1020.

       In contrast, there is nothing to suggest here that Plaintiff’s “inability to read,” his “mental

retardation,” or “other serious mental health diagnoses,” Opp. at 4, prevented him from accessing

the DOC’s grievance process. Indeed, the affidavit that Plaintiff has submitted in support of his

Opposition is reasonably sophisticated and demonstrates an ability to express concerns with the

treatment he claims he experienced at CDF. See Johnson Affidavit. Furthermore, the fact that

Plaintiff may have been mentally incompetent in 2008 or 2009, see Opp. at 6-7, Exh. 3



                                                  9
(Neuropsychological Evaluation, 2/13/08) & Exh. 4 (Maryland Dept. of Health and Mental

Hygiene Competency Evaluation, 4/28/08), does not show he was incompetent during his 2010

detention, as an individual’s competency is not fixed, but may vary over time. See, e.g., United

States v. Weston, 255 F.3d 873, 883 (D.C. Cir. 2001) (recognizing possibility of an individual’s

competency being restored prior to trial); Khiem v. U.S., 612 A.2d 160, 168 (D.C. 1992) (same).

His affidavit here, in fact, attests to his current competence. See Johnson Aff. at 1.

       The Court will thus follow the substantial majority of cases and decline to extend the

limited unavailability exception to the facts at hand.

               2. Failure to Inform

       Plaintiff also argues that the grievance process was unavailable to him because

“Defendant never informed him . . . regarding the grievance process.” Opp. at 4. Plaintiff’s

affidavit provides further detail regarding this claim:

               At no time did anyone tell me that I needed to follow a process to
               complain about my treatment as a prisoner at CDF. As a result, for
               the entire time I was at CDF, I had no knowledge of any process
               that I needed to follow to complain about how I was treated by the
               COs. . . . . If any documents were given to me, I cannot read. I
               was diagnosed with Mental Retardation and other mental
               disorders, by Doctors at [a] young age. CDF knew this. I was also
               never told by anyone at CDF that I had been given a document that
               described any process where I could complain about how I was
               treated at CDF. If I had known about that kind of process, I would
               have used it.

Johnson Aff., ¶¶ 12-16. Defendant disputes Plaintiff’s claimed unawareness, stating that “[t]he

DOC has a policy in place to inform every inmate of the grievance procedure.” Reply at 2 &

Exh. D (DOC Program Statement 4020.1D). “DOC also ensures that illiterate inmates get the

benefit of the handbook. Every inmate is assigned a case manager. If an inmate cannot read, the

Case Manager reads the orientation materials to the inmate or the information may be presented



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from a media recording.” Reply at 2 (internal citations omitted). As this type of factual dispute

is inappropriate for resolution on summary judgment, the Court will assume the truth of

Plaintiff’s averments.

       It is nonetheless significant that Plaintiff does not argue that Defendant affirmatively

obstructed his access to the grievance process; instead, he argues only that CDF staff failed to

provide him with information regarding the process. See Opp. at 4. Courts have distinguished

“failure to inform” cases like this one from cases in which affirmative action by prison staff

prevented access to remedies. See, e.g., Womack v. Smith, No. 06-2348, 2008 WL 822114, at

*6 (M.D. Pa. Mar. 26, 2008) (contrasting the consistency of precedent regarding affirmative

conduct that impedes an inmate’s ability to exhaust with the split of authority in failure-to-inform

cases), reversed and remanded on other grounds, 310 Fed. Appx. 547 (3d. Cir. 2009); El’Shabazz

v. City of Philadelphia, No. 05-353, 2007 WL 2155676, at *3 (E.D. Pa. July 25, 2007)

(recognizing distinction between cases where prison officials mislead inmates about the

administrative process and cases where prison officials fail to inform inmates of the process).

       Even if Plaintiff had argued some type of obstruction here, the undisputed facts do not

support it. The warden of the prison has an official duty to aid a prisoner who seeks assistance

with exhaustion; however, the prisoner must actually seek the warden’s assistance before the

duty is triggered. See, e.g., Ramos v. Smith, 187 Fed. Appx. 152, 154 (3d Cir. 2006) (illiterate

prisoners who fail to seek assistance from prison officials and prisoners who receive inaccurate

guidance from their attorneys are not excused from the exhaustion requirement). While Plaintiff

states that the Warden of CDF was aware of one of the assaults, apologized for it, and said it

would be handled, Johnson Aff. ¶ 8, nowhere does Plaintiff claim that he ever requested any

assistance from the Warden in filing a grievance. See id.; Opp. at 6, 8. Nor does he aver that he



                                                11
relied on the Warden’s statements in deciding not to file a grievance. In addition, Plaintiff does

not argue that the Warden or other prison officials misled him about the grievance process or

indicated that he should not or could not pursue it. In any event, again, his claim is only that he

was not aware of the process. See Opp. at 4.

        While it is clear that affirmative misconduct that prevents an inmate from exhausting

renders administrative remedies unavailable, see, e.g., Little v. Jones, 607 F.3d 1245, 1250 (10th

Cir. 2010) (“Where prison officials prevent, thwart, or hinder a prisoner’s efforts to avail himself

of an administrative remedy, they render that remedy ‘unavailable’ and a court will excuse the

prisoner’s failure to exhaust”); Turner v. Burnside, 541 F.3d 1077, 1084-85 (11th Cir. 2008) (an

administrative remedy is not available for purposes of PLRA where prison officials render

pursuit of remedy irrational through serious threats of substantial retaliation), there is less clarity

with regard to cases involving claims that prison officials failed to inform inmates of the

grievance system. See Womack, 2008 WL 822114, at *6 (discussing split). While this Circuit

has not yet weighed in on the issue, the majority of courts to have done so have held that an

inmate’s subjective lack of information about his administrative remedies does not excuse a

failure to exhaust.

        In Twitty v. McCoskey, 226 Fed. Appx. 594 (7th Cir. 2007), a pretrial detainee sued staff

members of a county jail under § 1983, alleging that they were deliberately indifferent to his

medical needs. Id. at 595. The detainee argued that he should “not [have been] required to

exhaust administrative remedies when he was unaware of any formal grievance procedure

available at the jail. He argue[d] that the jail failed to make him aware of the procedure, and that

this omission should excuse him from having to formally comply with it.” Id. at 596. The

Seventh Circuit rejected this argument, stating, “A prisoner’s lack of awareness of a grievance



                                                  12
procedure, however, does not excuse compliance.” Id. The court reasoned that the exhaustion

requirements of the PLRA are clear, and “we are not free to ‘engraft upon the statute an

exception that Congress did not place there.’” Id. (citing Chelette v. Harris, 229 F.3d 684, 688

(8th Cir. 2000)).

       In Brock v. Kenton County, 93 Fed. Appx. 793 (6th Cir. 2004), the Sixth Circuit

similarly rejected an argument that administrative remedies were “unavailable” based on an

inmate’s lack of information. Id. at 797. There, a juvenile offender argued that the grievance

system was not “available” to him because “juvenile inmates were not aware of its existence,” he

never was given “any information about the grievance system,” and he “did not, in fact, know

that a grievance system existed.” Id. Relying on the same language from Chelette, the court

declined an invitation to extend unavailability beyond cases where defendant prison officials

affirmatively prevent an inmate from using the grievance system. Id. at 798.

       And in Gonzales-Liranza v. Naranjo, 76 Fed. Appx. 270 (10th Cir. 2003), the Tenth

Circuit refused to extend the unavailability exception to exhaustion where a pre-trial detainee

sought to be excused from his failure to exhaust where he claimed that “‘[t]here are no

administrative remedies that Plaintiff is aware of . . . [and] [p]laintiff was [not] advised that he

could file anything administratively for the inactions that occurred.’” Id. at 271. Similar to the

facts here, the court noted that “[i]t is undisputed that [the facility] had a written grievance

procedure and it is undisputed that plaintiff did not exhaust that procedure.” Id. In rejecting the

plaintiff’s argument, the court reasoned that “any factual dispute between the parties as to

whether or not plaintiff was ever advised or informed of the prison’s grievance procedures was

not relevant,” id. at 272, as “‘[t]he statutory exhaustion requirement of § 1997e(a) is mandatory,

and the district court [is] not authorized to dispense with it.’” Id. at 273 (citing Beaudry v. Corr.



                                                  13
Corp. of Am., 331 F.3d 1164, 1167 n.5 (10th Cir.2003)); see also El’Shabazz, 2007 WL

2155676, at *3 (no unavailability where inmate claimed prison officials failed to take affirmative

steps to inform prisoners of the grievance process).

       The approach employed by these circuits is consistent with Supreme Court precedent,

which has strictly applied the PLRA’s provisions and has consistently refused to authorize

judicially created exceptions to the exhaustion requirement. See Graham v. Cty. of Gloucester,

668 F. Supp. 2d 734, 739 (E.D. Va. 2009) (collecting cases and noting that “the Supreme Court

has consistently ruled in favor of uniform application of the PLRA and strict compliance with its

exhaustion requirement”). Furthermore, requiring an inquiry into an individual inmate’s

knowledge of the grievance process would be a “time-consuming task [] fraught with

uncertainty,” id. at 740, as any inmate could create a triable issue of fact merely by averring he

did not know of the process. See id.

       While the Court is aware of contrary, but non-binding, authority, notably Goebert v. Lee

County, 510 F.3d 1312 (11th Cir. 2007), it declines to adopt the minority position taken in those

cases. In Goebert, the Eleventh Circuit excused the plaintiff’s failure to exhaust where he was

never advised of the grievance system, reasoning, “That which is unknown and unknowable is

unavailable.” Id. at 1323; see also Romanelli v. Suliene, No. 07-19, 2008 WL 4587110, at *6

(W.D. Wisc. Jan. 10, 2008) (placing onus on officials to inform prisoners of grievance

procedures: “if officials want to . . . obtain dismissal of lawsuits filed without using the

administrative remedy process, they must at least tell the prisoner what the process is”); Russell

v. Unknown Cook Cty. Sheriff’s Officers, No. 03-3786, 2004 WL 2997503, at *4-5 (N.D. Ill.

Dec. 27, 2004) (defendants required to establish that they gave actual notice (e.g., that an inmate

handbook was distributed to plaintiff) where plaintiff alleged ignorance of administrative



                                                  14
process); Arnold v. Goetz, 245 F. Supp. 2d 527, 537-38 (S.D.N.Y. 2003) (noting that an inmate

who is not informed about the grievance procedures cannot avail himself of them); Hall v.

Sheahan, No. 00-1649, 2001 WL 111019, at *2 (N.D. Ill. Feb. 2, 2001) (“An institution cannot

keep inmates in ignorance of the grievance procedure and then fault them for not using it.”).

Since both Russell and Hall were decided before the Seventh Circuit’s unpublished opinion in

Twitty v. McCoskey, the Court finds them to be of only limited persuasive value.

       As this Circuit has not recognized a prison’s failure to inform as an exception to the

PLRA’s exhaustion requirement, the Court will follow the decisions from other circuits that have

been reluctant to carve out new exceptions to this requirement. See Dillon v. Rogers, 596 F.3d

260, 270 (5th Cir. 2010) (acknowledging that courts are constrained from “licens[ing]” new

exceptions to the PLRA’s exhaustion requirements). While the limited number of exceptions

that excuse a prisoner’s failure to exhaust may result in harsh outcomes, the Court notes that

Plaintiff was not without means to pursue CDF’s grievance procedure. He could have sought

assistance from family members who were aware of the abuse, Compl., ¶¶ 29-39, or from his

attorney who “visited with him at CDF and observed the same wounds.” Id., ¶ 40; see Johnson-

Ester v. Elyea, No. 07-4190, 2009 WL 632250, at *6-7 (N.D. Ill. Mar.9, 2009) (recognizing that

the actions taken on plaintiff’s behalf by family and his attorney constitute exhaustion of

available administrative remedies). Additionally, Plaintiff could have sought assistance from the

Warden at CDF, whom he was in contact with and who was under a duty to assist Plaintiff had

he requested such assistance. See Johnson Aff., ¶8.

       Although the Court is not unsympathetic to what Plaintiff alleges occurred here – indeed,

his allegations are in places quite alarming – it nonetheless cannot find that Plaintiff has




                                                 15
established a genuine issue of material fact as to his failure to exhaust administrative remedies.

It will, consequently, grant Defendant’s Motion to Dismiss Count I without prejudice.

        B. Counts II–V: Common-Law Claims

        District courts are given supplemental (formerly, “pendent”) jurisdiction over state claims

that “form part of the same case or controversy” as federal claims over which they have original

jurisdiction. 28 U.S.C. § 1367(a). By the same token, they “may decline to exercise

supplemental jurisdiction over [such] claim[s] . . . if . . . the district court has dismissed all claims

over which it has original jurisdiction.” § 1367(c)(3). The Court has original jurisdiction here

only with regard to Count I (§ 1983 Claim) against the District, and it must determine whether it

should exercise supplemental jurisdiction over the remaining common-law claims (Count II

through Count V) against both Defendants in light of the dismissal of the only federal claim.

        The decision of whether to exercise supplemental jurisdiction where a court has

dismissed all federal claims is left to the court’s discretion as “pendent jurisdiction is a doctrine

of discretion, not a plaintiff's right.” United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966),

quoted in Shekoyan v. Sibley Int’l, 409 F.3d 414, 423 (D.C. Cir. 2005). When deciding whether

to exercise supplemental jurisdiction over state claims, federal courts should consider “judicial

economy, convenience and fairness to litigants.” Id. Nonetheless, “in the usual case in which all

federal-law claims are eliminated before trial, the balance of factors to be considered under the

pendent jurisdiction doctrine —judicial economy, convenience, fairness, and comity — will

point toward declining to exercise jurisdiction over the remaining state-law claims.” Carnegie–

Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988); see Edmondson & Gallagher v. Alban

Towers Tenants Ass'n, 48 F.3d 1260, 1267 (D.C. Cir. 1995) (finding the discretion set out in




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Carnegie-Mellon Univ. “unaffected by the subsequent enactment of 28 U.S.C. § 1367(d), in the

Judicial Improvements Act of 1990”).

       Here the factors clearly weigh against retention of the case. This Court has handled little

in the case beyond the current Motion to Dismiss and has not dealt at all with the pendent state

claims. Compare Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d 370, 378 (D.C. Cir. 2010)

(finding that district court appropriately retained pendent jurisdiction over state claims where it

had “invested time and resources” in the case). Finally, Plaintiff will not be prejudiced because

28 U.S.C. 1367(d) provides for a tolling of the statute of limitations during the period the case

was here and for at least 30 days thereafter. See Shekoyan, 409 F.3d at 419 (finding that because

of this tolling, dismissal of the pendent state claims “will not adversely impact plaintiff's ability

to pursue his District of Columbia claims in the local court system.”) (internal citation omitted).

       The Court thus declines to exercise supplemental jurisdiction over Plaintiff’s remaining

common-law claims, which he may file in the appropriate state or local forum.

IV.    Conclusion

       The Court will, therefore, issue a contemporaneous Order that grants the Motion and

dismisses the case without prejudice.

                                                       /s/ James E. Boasberg
                                                       JAMES E. BOASBERG
                                                       United States District Judge
Date: June 21, 2012




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