                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


KENNETH A. HINTON,                             )
                                               )
       Plaintiff,                              )
                                               )
       v.                                      )      Civil Action No. 08-312 (RWR)
                                               )
CORRECTIONS CORPORATION OF                     )
AMERICA et al.,                                )
                                               )
       Defendants.                             )


                                  MEMORANDUM OPINION

       Plaintiff Kenneth A. Hinton filed this suit against the operators of the Central Treatment

Facility (“CTF”), a correctional facility in the District of Columbia. Defendants have filed a

motion to dismiss and the plaintiff has filed an opposition. Because defendants have established

that the plaintiff did not exhaust his administrative remedies before filing this action as the law

requires, the defendants will be granted summary judgment.

                                         BACKGROUND

       The complaint alleges that “from on or about May 25, 2007,” while Hinton was confined

in the CTF, overcrowded and unsanitary conditions there caused him to become infected with the

methicillin-resistant Staphylococcus aureus (“MRSA”) bacteria. Compl. at 3. The complaint,

filed on a form for claims brought under 42 U.S.C. § 1983 for civil rights violations, does not

mention any specific civil rights violation, but repeatedly employs the phrases “deliberate

indifference” and “bad faith,” which are commonly associated with Eighth Amendment

violations. The defendants interpreted the complaint as one brought under § 1983 for violation

of the Eighth Amendment, and the plaintiff has neither objected to that interpretation nor
otherwise corrected it. That interpretation is a reasonable one, and the complaint will be

construed as one under § 1983.

       The complaint alleges that CTF staff ignored his requests for cleaning supplies and

disinfectants with which to sanitize his cell and surroundings, and that as a result of the MRSA

infection, he suffered painful medical treatment, mental anguish and emotional distress, and now

has a scar on his upper thigh and elbow from the medical treatment. Compl. at 4. Hinton seeks

two million dollars in compensatory and punitive damages. Id.

       In a declaration filed with his complaint, Hinton states that between May 28 and

August 22, 2007, he “submitted numerous ‘Institutional Inmate Grievances’ to the CCA/CTF

staff and particular[ly] to the attention of John Caulfield, Warden, regarding the unhealthy,

unsafe and unsanitary conditions [that he] and other inmates were exposed to as a proximate

result of not being provided requested cleaning supplies and disinfectants to clean [their] cells.”

Decl. of Kenneth Hinton (Aug. 31, 2007) (original spelling and punctuation altered). Hinton’s

declaration also states that he “notified the Warden, John Caulfield via ‘inmate request to staff’

forms and grievances that were logged with the designated CCA/CTF Grievance Officer, Ms.

Allen.” Id.

       Defendants have moved to dismiss the complaint contending that the plaintiff did not

exhaust all available administrative remedies as is required by law. The motion to dismiss is

supported by a sworn statement from the CTF’s Facility Grievance Officer, Joyce Allen, attesting

that her review of the grievance log for 2007 showed that Hinton had filed six inmate grievances,

but that none of them related to his MRSA infection or the allegedly unsanitary conditions at the

CTF, which are the subject of this suit. See Affidavit of Joyce Allen (Mar. 31, 2008) (“Allen


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Aff.”) ¶¶ 12, 19 (appending copies of the grievances). The Allen affidavit explains that any

grievance involving medical services is logged into the grievance log and then forwarded to a

different contractor who provides the medical services, which the defendants do not provide. Id.

¶ 5. In accordance with CTF policy at the time, all inmates were provided upon arrival in the

CTF with an Inmate Handbook containing a summary of the facility’s grievance policies and

procedures. Id. ¶¶ 6,7. CTF inmates also had access to the complete grievance policy at each

housing unit and the CTF law library, as well as from CTF staff. Id. ¶ 7. CTF policy encouraged

inmates to submit an Inmate Request Slip or speak to any staff member about their grievance

before initiating the first step of the official grievance process. Id. ¶ 8. The official grievance

process in effect at the time consisted of five sequential steps, each subject to strict deadlines. Id.

The regular process required two steps involving written submissions before any grievance

would be directed to the Warden’s attention, which occurred at the third step in the process, and

only if the grievance had not already been resolved, and only if the deadlines at each step to that

point had been met. Id. At the time Hinton was confined at the CTF, an inmate could bypass the

first step of the five-step process, but only if the grievance was initiated at the second step within

seven days of the triggering incident. Id. ¶ 9. The grievance policy also had procedures for

emergency grievances, such that if an inmate filed an emergency grievance, the CTF grievance

officer would review the grievance within 24 hours to determine whether the situation did, in

fact, constitute an emergency. If an emergency exists, the grievance officer would prepare a

response within 72 hours of receipt of the grievance. Id. ¶ 11.

       In his opposition, Hinton stated that the CTF grievance officer never informed him that he

“must exhaust his administrative remedies regarding his need for reasonable, diligent, and


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expedient medical care.” Opp’n at 2. He further stated that he “followed all available

‘emergency remedy’ procedures that [were] communicated to him by the CCA/CTF unit manager

and nurse who assessed the plaintiff’s need for medical care.” Id. On this basis, Hinton argues

that he did properly exhaust all available administrative remedies.

                                           DISCUSSION

       The Prison Litigation Reform Act (“PLRA”) provides 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. § 1997(e)(a). “There is no question that exhaustion is mandatory under

the PLRA . . . .” Jones v. Bock, 549 U.S. 199, 211 (2007). Failure to exhaust under the PLRA is

an affirmative defense that a defendant may plead or raise on motion.1 See id. at 211-212.

       When a court considers documents and declarations filed by the parties that were not

“either attached to or incorporated in the complaint,” a motion to dismiss for failure to state a


       1
           The law is unsettled, however, on the question of the extent to which waiver, equitable
estoppel or tolling can apply to defeat the affirmative defense of non-exhaustion under the
PLRA. In this circuit, it does appear that a defendant may waive the defense of non-exhaustion
by not raising it. See Ali v. District of Columbia, 278 F.3d 1, 5-6 (D.C. Cir. 2002) (concluding
that the PLRA’s exhaustion requirement is not jurisdictional and noting that it had considered a
waiver argument in Jackson v. District of Columbia, 254 F.3d 262, 267 (D.C. Cir. 2001)).
Unlike other circuits, though, this circuit has not held that equitable estoppel may defeat the
defense of non-exhaustion. See Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004) (holding
that PLRA’s exhaustion requirement is subject to equitable estoppel); Wright v. Hollingsworth,
260 F.3d 357, 358 n.2 (5th Cir. 2001); Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998)
(stating that the amended PLRA statute imposes an exhaustion “requirement, rather like a statute
of limitations, that may be subject to certain defenses such as waiver, estoppel, or equitable
tolling”); see also Jernigan v. Stuchell, 304 F.3d 1030, 1033 (10th Cir. 2002) (not deciding
whether estoppel applies to PLRA exhaustion because plaintiff had not established elements of
estoppel); Lewis v. Washington, 300 F.3d 829, 834 (7th Cir. 2002) (noting that the Fifth Circuit’s
application of estoppel to PLRA exhaustion was “persuasive,” but not deciding whether estoppel
applies to PLRA exhaustion because plaintiff did not present facts to establish estoppel).

                                                -4-
claim must be treated as one for summary judgment. Egilman v. Keller & Heckman, LLP, 401 F.

Supp. 2d 105, 109 (D.D.C. 2005). A court must grant a motion for summary judgment “if the

pleadings, the discovery, and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(c). If a party “fails to establish the existence of an element essential to

his case and on which [that party] will bear the burden of proof at trial,” summary judgment is

warranted. Hazward v. Runyon, 14 F. Supp. 2d 120, 123 (D.D.C. 1998) (citing Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986)).

         When ruling on a summary judgment motion, a court is bound to draw “all justifiable

inferences” in the nonmoving party’s favor and accept the nonmoving party’s evidence as true,

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), and “may not make credibility

determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 150 (2000). However, “the nonmoving party ‘must do more than simply show that there is

some metaphysical doubt as to the material facts.’” Bias v. Advantage Int’l, Inc., 905 F.2d 1558,

1561 (D.C. Cir. 1990) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986)). Rather, it must “provide evidence that would permit a reasonable [fact-finder] to

find” in the non-moving party’s favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir.

1987).

         In this case, the defendants have established that the inmate grievance process at the CTF

had multiple distinct steps that had to be taken within certain time periods and in a certain

sequence, and that an emergency grievance had to qualify as an emergency to be processed as

such. The Allen affidavit established that the institution’s grievance log shows that the plaintiff


                                                -5-
initiated six grievances, none of which relates to the subject matter of this case. The plaintiff has

responded that the grievance officer did not tell plaintiff that he needed to file a grievance

regarding his medical treatment.2 This response does not raise a genuine issue of material fact,

but rather concedes that no grievance was filed. The plaintiff has not offered evidence of

affirmative misconduct by prison officials that prevented the plaintiff from initiating and

exhausting all available administrative remedies that might justify the application of estoppel to

defeat the defense. The plaintiff does not dispute that he received an Inmate Handbook

containing a summary of the grievance process, and the record shows clearly that he had access

to the Inmate Handbook and was familiar with parts of it. See Allen Aff., Att. B (Hinton’s

inmate grievance filed May 4, 2007, citing page 12 of the Inmate Handbook). The plaintiff also

does not dispute that he had other means of informing himself of the requirements of the official

grievance process. Plaintiff has averred that he submitted numerous institutional inmate-to-staff

grievances to the CCA/CTF staff and particularly to the attention of the Warden, and that he

followed all available “emergency remedy” procedures communicated to him by the CCA/CTF

unit manager and nurse. Opp’n at 2. Crediting plaintiff’s statements as true, the plaintiff has not

provided evidence that establishes that he followed the prescribed grievance procedures in

sequence and met the requirements at each step, thereby exhausting all available administrative

remedies, or that defendants’ conduct should operate to defeat the defense of non-exhaustion.


       2
           In accord with its obligation, the Court makes no credibility determinations about the
plaintiff’s assertion that he was not aware of the need to exhaust his administrative remedies
regarding the medical staff’s response to his MRSA infection in the days after May 25, 2007,
even though prior to that time he had filed a medical grievance regarding his prescription
eyeglasses. Allen Aff. ¶ 14 (reporting that the Grievance Log showed that on May 14, 2007,
Hinton submitted Medical Grievance 07-295 complaining that he had not received his
prescription eyeglasses).

                                                -6-
                                         CONCLUSION

       Because the plaintiff has not provided evidence that would permit a reasonable fact-finder

to conclude on this record that plaintiff exhausted all available administrative remedies, a

prerequisite to this suit, summary judgment for the defendant is warranted and will be granted.

       A separate order accompanies this memorandum opinion.

       SIGNED this 9th day of June, 2009.


                                                                 /s/
                                                      RICHARD W. ROBERTS
                                                      United States District Judge




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