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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

MICHAEL A. SCOTT, SR.,

Plaintiff,

v.

MAGGIE MILLER-STOUT, et al.,

Defendants.

CASE NO. C05-1950-RSL-JPD

REPORT AND

RECOMMENDATION

INTRODUCTION AND SUMMARY CONCLUSION

This is s civil rights action brought under 42 U.S.C. § 1983. Plaintiff is a state prisoner

who is currently incarcerated at the Airway Heights Corrections Center (“AHCC”) in Airway

Heights, Washington. Plaintiff alleges in his second amended civil rights complaint that he was

deprived of personal property by officials at two Washington State corrections facilities who were

the custodians of that property. He also alleges that an employee at one of the facilities retaliated

against him for filing a tort claim related to the lost property. Plaintiff identifies the following

individuals as defendants in this action: Maggie Miller-Stout, Superintendent at AHCC; Robert

Moore, Superintendent at the Monroe Correctional Complex (“MCC”); Pat Glebe, Assistant

Superintendent at MCC; and, Tracy Daniel, a custody unit supervisor at MCC. 

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Defendants have now filed a motion to dismiss this action for failure to exhaust

administrative remedies. Plaintiff has filed a response to defendants’ motion and defendants have

filed a reply brief in support of their motion. The briefing is now complete, and this matter is

ripe for review. This Court, having reviewed defendants’ motion, and the balance of the record,

concludes that the motion to dismiss should be granted and this action should be dismissed,

without prejudice, for failure to exhaust administrative remedies. 

DISCUSSION

At issue in this action are two boxes of plaintiff’s property which were mailed from MCC 

to plaintiff at AHCC on October 6, 2003, but which plaintiff contends he never received. 

Plaintiff asserts that defendants Miller-Stout, Moore, and Glebe, in their role as superintendents at

AHCC and MCC, were the legal custodians of his personal property and that their failure to

ensure that the property was delivered to him following his transfer between institutions

constitutes a violation of his Fifth and Fourteenth Amendment rights. He further contends that

defendant Daniel failed to conduct a good faith investigation into the lost property and then

retaliated against plaintiff when plaintiff refused to withdraw a tort claim filed against defendant

Daniel with respect to the lost property.

Defendants argue in their motion to dismiss that this action should be dismissed because

plaintiff failed to exhaust his administrative remedies under 42 U.S.C. § 1997e(a). Section

1997e(a) provides that “[n]o 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) requires complete exhaustion through any available process. 

See Porter v. Nussle 534 U.S. 516, 524 (2002) (“All ‘available’ remedies must now be

exhausted.”); Booth v. Churner, 532 U.S. 731, 735 (2001). 

If administrative remedies have not been exhausted at the time an action is brought, it

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must be dismissed without prejudice. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir.

2002)(per curiam). “In deciding a motion to dismiss for a failure to exhaust nonjudicial

remedies, the court may look beyond the pleadings and decide disputed issues of fact. If the

district court concludes that the prisoner has not exhausted nonjudicial remedies, the proper

remedy is dismissal of the claim without prejudice.” Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th

Cir. 2003)(citations and footnote omitted). 

Defendants assert in their motion to dismiss that the Washington Department of

Corrections (“DOC”) has an established administrative grievance process, but that plaintiff failed

to complete that process with respect to his property claim. Defendants have offered the

declaration of Devon Schrum, DOC Grievance Program Manager, to support this assertion. Mr.

Schrum identifies in his declaration the types of issues which are grievable through the

Washington Offender Grievance Program. In addition, he describes the four levels of review

which comprise the grievance procedure. Mr. Schrum indicates that his review of the DOC’s

official grievance records revealed that plaintiff filed two grievances concerning lost property,

but that he failed to complete the grievance process on either occasion. The first grievance by

plaintiff with respect to his lost property, submitted at AHCC on December 9, 2003, was returned

to plaintiff for re-writing to include required information. Plaintiff apparently elected not to rewrite that grievance. Plaintiff subsequently submitted a second grievance related to his lost

property to the AHCC grievance coordinator. That grievance was denied at level one of the

grievance process and plaintiff pursued the grievance no further.

Plaintiff, in his response to defendants’ motion to dismiss, appears to concede that he did

not pursue the grievance process to its conclusion with respect to his property claim. However,

he attributes this to the fact that he was advised in the response to his second grievance that

further inquiries regarding his lost property should be addressed to MCC. Plaintiff appears to

indicate that he thereafter had some sort of informal communication with MCC regarding the lost

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property, but he made not effort to pursue the grievance process with MCC. Plaintiff states that

he elected instead to pursue his administrative remedies by way of a tort claim filed with the

Department of Financial Management in Olympia. 

As noted above, § 1997e(a) requires complete exhaustion through any available process. 

The institutional grievance process was available to plaintiff yet he failed to see that process

through to its conclusion. Instead, plaintiff elected to bypass that process in favor of filing a state

tort claim. Plaintiff offers no authority to support that proposition that the filing of a state tort

claim in lieu of completing the administrative grievance process satisfies the exhaustion

requirement, and this Court is aware of no such authority. Accordingly, this Court concludes that

plaintiff failed to exhaust his property claim.

Plaintiff also claims that he was transferred to the MCC Special Offenders Unit (“SOU”),

a prison unit for mentally ill offenders, in retaliation for his refusal to withdraw his state tort

claim. Defendants do not address this claim in their motion to dismiss. It is not clear whether

this was an intentional omission or merely an oversight. Regardless, it appears from the record

before this Court that plaintiff has also failed to exhaust available remedies with respect to his

retaliation claim. Documents submitted by plaintiff with his first amended complaint reflect that

plaintiff grieved his transfer to the SOU. In the grievance response, plaintiff was advised that the

transfer constituted a classification decision and was therefore not grievable. He was further

advised that he could appeal the transfer to the superintendent of the sending facility. Nothing in

the record suggests that plaintiff ever pursued such an appeal. This Court must therefore

conclude that plaintiff failed to properly exhaust his administrative remedies with respect to his

retaliation claim as well.

CONCLUSION

Based on the foregoing, this Court recommends that defendants’ motion to dismiss be

granted and that plaintiff’s second amended complaint, and this action, be dismissed without

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prejudice. A proposed order accompanies this Report and Recommendation. 

DATED this 3rd day of November, 2006.

AJAMES P. DONOHUE

United States Magistrate Judge 

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