The opinion of the court was delivered by: James E. Boasberg United States District Judge
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.
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 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.
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 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 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 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 non-movant 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 non-movant's evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Liberty Lobby, Inc., 477 U.S. at 249-50.
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"). ...