RECOMMENDED DECISION ON MOTION FOR SUMMARY JUDGMENT AND ORDER ON MOTION TO STRIKE
Jeffrey Libby has brought a 42 U.S.C. § 1983 complaint againstJeffrey Merrill, the Warden of the Maine State Prison, alleging thatMerrill violated his right to the free exercise of religion when hecancelled a pre-arranged personal visit to Libby by Maine's CatholicArchbishop, thereby depriving Libby of "a once in a lifetimeopportunity."1 Earlier I recommended denial, in part, of Merrill'smotion to dismiss because I concluded that Libby had sufficiently allegedin his amended complaint exhaustion of his administrative remedies asrequired by 42 U.S.C. § 1997e(a). In this motion for summary judgment(Docket Nos. 16 & 17) Merrill reasserts the non-exhaustion argument,supported by a statement of material facts and an affidavit. Libby doesnot contest that he has not exhausted his remedies, but argues only thathis claim is of a strain that does not require § 1997e(a) exhaustion.As this assertion runs counter to governing United States Supreme Courtprecedent interpreting § 1997e(a), I now recommend that the Court GRANT Merrill's motion for summary judgment andDISMISS the complaint for failure to exhaust I alsoGRANT Merrill's motion to strike.
Merrill is entitled to summary judgment only "if the pleadings,depositions, answers to interrogatories, and admissions on file, togetherwith the affidavits, if any, show that there is no genuine issue as toany material fact and that [Merrill] is entitled to judgment as a matterof law." Fed.R.Civ.P. 56(c). A fact is material if its resolutionwould "affect the outcome of the suit under the governing law,"Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), andthe dispute is genuine "if the evidence is such that a reasonable jurycould return a verdict for the nonmoving party," id I view the record inthe light most favorable to Libby, the opponent of summary judgment, andI indulge all reasonable inferences in his favor. SeeFeliciano De La Cruz v. El Conquistador Resort & CountryClub. 218 F.3d 1, 5 (1st Cir. 2000).
Merrill moves for summary judgment solely on the ground that Libby hasnot fully exhausted his 42 U.S.C. § 1983 claims as required by42 U.S.C. § 1997e(a). This provision 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).
Undisputed Material Facts
Libby was a prisoner in the custody of the Department of Correctionswhen he filed this lawsuit and remains a prisoner in the Department'scustody. (DSMF ¶¶ 1 & 2.) The grievance policy in effect at thetime of the incident giving rise to Libby's lawsuit — the alleged April 30, 2001, cancellation of a visit between him andthe Bishop of Maine — was Policy 14.5, which has since beensuperseded by Policy 29.1 (Id. ¶¶ 3 & 4.) Under bothgrievance policies, there is a formal grievance process that has threelevels of review. (Id. ¶ 5.) The third and final level ofreview provided for under both grievance policies is review by theCommissioner of Corrections. (Id. ¶ 6.) There is nogrievance from Libby concerning the cancellation of a visit between himand the Bishop of Maine that has been forwarded for the Commissioner'sreview. (Id. ¶ 7.)
Libby admits this recitation of facts. (Pl.'s Resp. DSMF ¶¶ 1-7.) Heargues only that the exhaustion requirement does not apply to his claimbecause it is one for which there is no administrative remedy availablebecause no outcome of the grievance process could have remedied the lossof his once in a lifetime opportunity to visit with the Bishop of Maine.
The United States Supreme Court has made it clear that § 1997e(a)'s"exhaustion requirement applies to all inmate suits about prison life,whether they involve general circumstances or particular episodes, andwhether they allege excessive force or some other wrong." Porter v.Nussle, 534 U.S. 516, 532 (2002). The Court has also concluded "thatan inmate must exhaust irrespective of the forms of relief sought andoffered through administrative avenues." Booth v. Churner,532 U.S. 731, 741 n.6 (2001). See also Medina-Claudio v.Rodriguez-Mateo, 292 F.3d 31, 36 (1st Cir. 2002) (followingBooth and observing that there is no "futility exception" tothe § 1997e(a) exhaustion requirement). This unequivocal precedent dictates that Merrill be granted the reliefhe seeks, and that Libby's complaint against Merrill be dismissed forfailure to exhaust. My recommendation is that the remainder of Libby'saction against Merrill should be dismissed without prejudicebecause this § 1997e(a) analysis does not touch upon the merits ofthe § 1983 claim but rests only on a determination that his actionagainst Merrill is an "action [that cannot] be brought,"42 U.S.C. § 1997e(a), because of a failure to exhaust. However, this`non-prejudicial' treatment does mean that Libbycannot return to this Court with these claims against Merrillin their unexhausted state and I do recommend that the complaint bedismissed with prejudice as to the question of whether Libby has failedto exhaust his remedies before filing this civil action. SeeLebron-Rios v. U.S. Marshal Service, 341 F.3d 7,13-15 (1st Cir. 2003) (addressing this question in the context ofdismissal for failure to exhaust prior to bringing a Title VII action).In the present case it appears that Libby is now time barred under theapplicable grievance procedure, and therefore he will not be able toexhaust his claims and return to this court.
Porter and Booth also demonstrate the futility ofLibby's additional material facts that are the subject of Merrill'smotion to strike (Docket No. 23). As Merrill argues, the three additionalmaterial facts are not cognizable as material facts in this dispute, butare, rather, regurgitations of Libby's legal argument that his is thetype of claim that does not fall under the § 1997e(a) exhaustionrequirement. They are not facts, properly supported bycitations to the record. Because I have already explained that Libby isutterly misguided on this score, I now GRANT the motion tostrike, although it is an action of little moment because even if the"facts" were part of the record, they would add nothing. Conclusion
For the reasons stated above I GRANT the motion to strike. Irecommend that the Court DISMISS the single remaining countagainst Merrill in his individual capacity because of Libby's admittedfailure to exhaust his administrative remedies as required by42 U.S.C. § 1997e(a).
A party may file objections to those specified portions of a magistrate judge's report or proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district court is sought, together with a supporting memorandum, within ten (10) days of being served with a copy thereof. A responsive memorandum shall be filed within ten (10) days after the filing of the objection. Failure to file a timely objection shall constitute a waiver of the right to de novo review by the district court and to appeal the district court's order.
1. A more thoroughgoing description of the factual underpinnings ofLibby's complaint can be found in my recommended decision on Merril'smotion to dismiss. Libby v. Merrill. 2003 WL 21756830, *1 (D.Me. July 29, 2003) (recommended decision), 2003 WL 22669017 (Nov. 7,2003) (affirming recommended decision).