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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MARK DUVALL, §

§

Plaintiff, §

§

v. § CIVIL ACTION NO. 3:05-CV-2431-B

§

DALLAS COUNTY, TEXAS, §

§

Defendant. §

MEMORANDUM ORDER

Before the Court is Defendant Dallas County’s(the “County”) Motion to Dismiss (doc. 17),

filed September 9, 2006. The County argues that this action should be dismissed without prejudice

under Rule 12(b)(6), Federal Rules of Civil Procedure, because Plaintiff Mark Duvall failed to

exhaust administrative remedies asrequired by the Prison LitigationReform Act (“PLRA”). For the

reasons explained below, the Court finds that it is appropriate to treat the County’s motion as one

for summary judgment, and it will afford the parties a reasonable opportunity to present all materials

made pertinent to a Rule 56 disposition.

I. Factual and Procedural Background

Duvall was incarcerated in the Dallas County Jail (the “Jail”) from December 12, 2003 to

December 26, 2003. (Pl.’s First Am. Compl. [“Compl.”] at p. 5). While incarcerated, Duvall

became ill and experienced cold sweats, fever, swelling, and vomiting. He claims that he sought

medical treatment from the jail staff, but was refused. After Duvall was released on bail on

December 26, 2003, he immediately sought medical attention. At some point after December 30,

2003, Duvall was diagnosed with methicillin resistant Staphylococcus aureus (“MRSA”), which he

 

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claims to have contracted during his incarceration at the Jail. (Compl. at p. 6). On December 9,

2005, Duvall filed this civil action against theCounty under 42 U.S.C. § 1983, complaining that the

County violated his constitutional rights by failing to provide proper medical treatment while he was

incarcerated at the Jail in December 2003.

On September 19, 2006, the County moved to dismiss this action on the basis that Duvall

failed to exhaust available administrative remedies as required by the PLRA. Duvall admits his

failure to exhaust, but contends that special circumstances existed which should excuse him from

having to comply with the exhaustion requirement. 

II. Analysis

As amended by the PLRA, 42 U.S.C. § 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). The exhaustion requirement is mandatory, see Woodford v. Ngo, 126 S.Ct.

2378, 2382 (2006), and “applies to all inmate suits about prison life, whether they involve general

circumstances or particular episodes, and whether they allege excessive force or some other wrong.”

Porter v. Nussle, 534 U.S. 516, 532 (2002). The Fifth Circuit has held that “[d]ismissal under §

1997e is made on pleadings without proof” and that “[a]s long as the plaintiff has alleged exhaustion

with sufficient specificity, lack of admissible evidence in the record does not form the basis for

dismissal.” Days v. Johnson, 322 F.3d 863, 866 (5 Cir. 2003) (quoting Underwood v. Wilson, 151 th

F.3d 292, 296 (5 Cir. 1998)). th

There is no dispute here that Duvall failed to engage the grievance process in place at the

Dallas County Jail. He argues, however, that he should be excused from the exhaustion requirement

 

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for two reasons. First, he contends that no administrative remedies were “available” to him within

the meaning of § 1997e(a) during his confinement at the Jail in December 2003 because he did not

learn that he had MRSA until after his release from the Jail on December 26, 2003. Second, he

claims that his health condition prevented him from submitting a grievance within 30 days of the

alleged violation of his rights as required by the County’s Inmate Grievance Procedures. The Court

addresses each of these arguments in turn.

Duvall’s first argument – that the County’s grievance procedures were unavailable to him

because he was not diagnosed with MRSA until after his release from the Jail on December 26, 2003

– has some superficial appeal. A number of circuits have held that litigants who bring suits

concerning prison life after being released are not subject to § 1997e(a)’s exhaustion requirement.

See e.g. Norton v. The City of Marietta, 432 F.3d 1145, 1150 (10 Cir. 2005); Nerness v. Johnson, 401 th

F.3d 874, 876 (8 Cir. 2005); Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999). These decisions are th

based on the plain fact that a prisoner, once released, is no longer a “prisoner confined in [] jail”

within the meaning of § 1997e(a). Moreover, the legislative history to § 1997e suggests that

Congress’s purpose in enacting the PLRA was to reduce the number of frivolous lawsuits filed by

prisoners on a “recreational” basis. See Greig, 169 F.3d at 167. “Congress deemed prisoners to be

pestiferous litigants because they have so much free time on their hands and there are few costs to

filing suit.” Kerr v. Puckett, 138 F.3d 321, 323 (7 Cir. 1998). Once a prisoner is released from th

confinement, however, “[o]pportunity costs of litigation rise . . ., diminishing the need for special

precautions against weak suits.” Id.; Gibson v. Brooks, 335 F.Supp.2d 325, 330 (D. Conn. 2004)

(“Generally, formerly incarcerated individuals have no more incentive nor opportunity to pursue

frivolous lawsuits than most people.”).

 

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Thus, “it is the plaintiff’s status at the time he files suit that determines whether § 1997e(a)’s

exhaustion provision applies.” Norton, 432 F.3d at 1150 (emphasis added); Nerness, 401 F.3d at 876;

Witzke v. Femal, 376 F.3d 744, 750 (7 Cir. 2004); Cox v. Mayer, 332 F.3d 422, 424-25 (6 Cir.

th th

2003); Ahmed v. Dragovich, 297 F.3d 201, 210 (3d Cir. 2002); Medina-Claudio v. Rodriguez-Mateo,

292 F.3d 31, 35 (1 Cir. 2002); Greig, 169 F.3d at 167. The County asserts that, while Duvall may st

have been released from the Jail on December 26, 2003, he has made several return visits since then,

most notably from May 9, 2005 through March 31, 2006, during which time he filed this suit on

December 9, 2005. (Def. Reply at 2). Thus, according to the County, Duvall was a “prisoner

confined in [] jail” at the time he filed this lawsuit and, as such, is bound by the PLRA’s exhaustion

requirement. The question thus arises as to whether the exhaustion requirement applies to

individuals who were in prison at the time their claim accrued, were later released from custody, and

ultimately filed a lawsuit based on the earlier claim only after they were again incarcerated. 

Other courts have found that § 1997e(a) does apply in such circumstances. In Gibson v.

Brooks, 335 F.Supp.2d 325 (D. Conn. 2004), plaintiff Joseph Gibson filed a § 1983 civil rights suit

against prison officials arising out of an alleged assault that occurred at a correctional facility on

September 16, 1999. Id. at 326-27. Gibson was released from prison on December 15, 1999. Id. at

327. On October 3, 2001, hewas reincarcerated and, during his confinement, filed his § 1983 action

based on the earlier assault. Id. The district court held that both the literal language of § 1997e(a)

and the statute’s legislative history supported the conclusion that Gibson was subject to the

exhaustion requirement because he was a prisoner at the time he filed suit. Id. at 330. As the Gibson

Court put it:

Admittedly, section 1997e(a) creates a rather odd situation in which a person’s

 

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ability to enforce his or her constitutional rights can be stripped upon incarceration,

even where the rights to be enforced were infringed during that person’s

incarceration on an unrelated conviction. Gibson could have filed suit with respect

to the September 16, 1999 incident in the 18-month period during which he was

first on parole and later released. Had he filed within that time period, Gibson

would not have been subject to the requirements of section 1997e(a). Upon his

incarceration on October 3, 2001, however, Gibson became, once again, a

“prisoner,” subject to the PRLA’s [sic] requirement that he exhaust any available

administrative remedies prior to filing a lawsuit with respect to prison conditions.

Gibson is a prisoner and was a prisoner on the date that he filed this suit, September

9, 2002. That his status as a prisoner bears directly on his ability to bring a lawsuit

alleging a violation of constitutional rights is a result of congressional intention

expressed in clear statutory language.

Id.; see also Berry v. Kerik, 366 F.3d 85 (2d Cir. 2004) (finding that prison’s administrative grievance

procedures were “available” to plaintiff during period when he “was reincarcerated in the custody of

the agency against which he had grievances” despite “[t]he fact that his two reincarcerations were

for offenses different from the one for which he was confined when his grievances arose[.]”); cf. Dixon

v. Page, 291 F.3d 485, 488-89 (7 Cir. 2002) (plaintiff not excused from exhaustion requirement th

where he was a prisoner when he filed his complaint despite the fact that he was no longer a prisoner

at the time of his appeal). 

Based on those decisions and the plain language of the statute, the Court finds that Duvall

issubject to the exhaustion requirement provided that he was incarcerated on December 9, 2005, the

date he filed this action. There is neither any evidence in the record, nor any allegation in Duvall’s

complaint, however, that Duvall was incarcerated on that date. While the County asserts in its reply

brief that “[t]he records of the Dallas County Sheriff’s Department reflect that the Plaintiff was in

the Dallas County Jail” when this suit was filed (Def.’s Reply at 2), it fails to cite to any evidence on

that score. Even if it had, it would be inappropriate to consider such evidence in ruling on a Rule

12(b)(6) motion, where the Court’s review is limited to the facts stated in the complaint and the

 

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 The Court notes that there is some uncertainty in the Fifth Circuit as to whether exhaustion is a 1

component of the plaintiff’s claim or an affirmative defense that must be pleaded and proved by the

defendant. See Johnson v. Johnson, 385 F.3d 503, 516 n. 7 (5 Cir. 2003). The Fifth Circuit has stated that th

“[d]ismissal under § 1997e is made on pleadings without proof” and that “[a]s long as the plaintiff has alleged

exhaustion with sufficient specificity, lack of admissible evidence in the record does not form the basis for

dismissal.” Underwood, 151 F.3d at 296. The exhaustion issue may nevertheless be raised by summary

judgment, however. See Moore v. St. Tammany Parish Jail, 113 Fed. Appx. 585, 586 (5 Cir. 2004); Austin th

v. Ward, 92 Fed. Appx. 80, 82 (5 Cir. 2004). th

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documents either attached to or incorporated in the complaint. See Lovelace v. Software Spectrum

Inc., 78 F.3d 1015, 1017-18 (5 Cir. 1996). Nor can the County point to Duvall’s complaint, as it

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fails to mention Duvall’s whereabouts at the time the complaint was filed. 

There is thus no present basis upon which the Court can determine whether Duvall was

incarcerated when he filed this case. Nevertheless, as Duvall’s status at that time is presumably a

readily determinable fact, the Court finds that the best approach is to require the County to submit

proof supporting its assertion that Duvall was incarcerated in the Dallas County Jail on December

9, 2005. Given the anticipated submission of such evidence, and the fact that the County has

already submitted an affidavit as evidence in support of its reply brief to its Rule 12(b)(6) motion,

the Court finds that it is appropriate to convert the County’s Rule 12(b)(6) motion into one for

summary judgment. When, in connection with a Rule 12(b)(6) motion, “matters outside the

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pleadings are presented to and not excluded by the court, the motion shall be treated as one for

summary judgment and disposed of as provided in Rule 56[.]” FED.R.CIV. P. 12(b); Gen. Guar. Ins.

Co. v. Parkerson, 369 F.2d 821 (5 Cir. 1966). The court has discretion whether to consider the th

extraneous materials. SeeIsquith v. Middle S. Utils., Inc., 847 F.2d 186, 193 n.3 (5 Cir. 1988). The th

court considers whether converting the motion and materials submitted into a summary judgment

inquiry will likely facilitate the disposition of the action. Id. If a motion to dismiss is so converted,

 

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“all parties shall be given reasonable opportunity to present all material made pertinent to such a

motion by Rule 56.” FED. R. CIV. P. 12(b). 

The Court finds that a Rule 56 conversion will facilitate the disposition of this action. So

finding, the Court must give the parties a reasonable opportunity to present all materials they believe

are relevant to a Rule 56 inquiry. Id. Because the exhaustion issue involved here is relatively

straightforward, the Court believes that an accelerated schedule is appropriate. Accordingly, the

County is directed to submit to the Court all materials made pertinent to a Rule 56 inquiry on or

before December 11, 2006. Duvall may file any responsive materials on or before December 21,

2006. 

The Court next considers Duvall’s argument that he should be absolved from having to

comply with § 1997e(a)’s exhaustion requirement because his health condition prevented him from

submitting a grievance within 30 days of the alleged violation of his rights as required by the County’s

inmate grievance procedures. There is no disagreement that, at the time Duvall was incarcerated

in the Jail in December 2003, the County had administrative grievance procedures in place which

allowed inmates 30 days to file a grievance based on an alleged rights violation. (Pl. Resp. at 2).

Duvall contends that he was unable to comply with the 30-day requirement because of his poor

health and the fact that he was in the hospital. Duvall relies on the Fifth Circuit’s decision in Days

v. Johnson, 322 F.3d 863 (5 Cir. 2003). In Days, Frank Days filed a § 1983 suit against the Director th

of the Texas Department of Criminal Justice – Institutional Division and various other prison officials

based on injuries suffered to his hand due to a fall in prison. Id. at 864, 866. Days had attempted

to file grievances based on the incident but they were deemed untimely. Id. Days claimed that his

injuries prevented him from timely filing the grievances. The Fifth Circuit found that, in light of his

 

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injury, Days had sufficiently alleged that he had exhausted the administrative remedies that were

personally available to him. Id. at 867. Based strictly on “the narrow facts of this case”, the Court

held that “administrative remedies are deemed unavailable when (1) an inmate’s untimely filing of

a grievance is because of a physical injury and (2) the grievance system rejects the inmate’s

subsequent attempt to exhaust his remedies based on the untimely filing of the grievance.” Id. at

368. 

This case does not fall within the holding of Days. Because, as is undisputed, Duvall never

filed a grievance, the County could not have rejected an attempt to exhaust as untimely. Days does

not hold that a physical injury excuses an inmate from ever attempting to exhaust available

administrative remedies. It is thus premature at this time to conclude that the County’s grievance

procedures were “unavailable” to Duvall. 

III. Conclusion

In conclusion, the Court declines to rule on the County’s motion to dismiss at this time, and

instead converts it, pursuant to Rule 12(b), into a motion for summary judgment. The County is

accordingly directed to submit all material made pertinent to a Rule 56 inquiry on or before

December 11, 2006. The County is specifically directed to provide evidence supporting its assertion

that Duvall was incarcerated in the Dallas County Jail on December 9, 2005, when he filed this suit.

Duvall must submit his responsive Rule 56 materials on or before December 21, 2006. 

SO ORDERED. SIGNED December 1, 2006.

_________________________________

JANE J. BOYLE

UNITED STATES DISTRICT JUDGE

 

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