Lamar William Jones BEY, Plaintiff-Appellant, v. Kelly JOHNSON and Wayne Trierweiler, Defendants-Appellees, 407 F.3d 801

SILER, J., delivered the opinion of the court, in which BERTELSMAN, D. J., joined. CLAY, J. (pp. 809-14), delivered a separate opinion concurring in part and dissenting in part. OPINION SILER, Circuit Judge. Plaintiff Lamar William Jones Bey appeals from an order entered by the United States District Court for the Western District of Michigan, granting

summary judgment to defendants Kelly Johnson and Wayne Trierweiler and dismissing with prejudice Jones Bey’s First and Eighth Amendment claims brought pursuant to 42 U.S.C. § 1983. Because Jones Bey did not fully exhaust his administrative remedies, we REVERSE and REMAND this case to the district court to dismiss his petition without prejudice. I. A. Procedural History Jones Bey is a prisoner at the Alger Maximum Correctional Facility in Muns-ing, Michigan. Johnson is a guard at the facility, and Trierweiler is the prison’s grievance coordinator.

Between October 2001 and April 2002, Jones Bey filed nine grievances against Johnson alleging various instances of misconduct and one against Trierweiler alleging a mishandling of these grievances. Jones Bey filed this action against the defendants in their individual capacity in July 2002 claiming that both defendants violated his First Amendment rights, and that Johnson also violated his Eighth Amendment right to be free from the use of excessive force. The district court referred this case to a magistrate judge. The magistrate judge recommended that

summary judgment be granted to the defendants because Jones Bey had not fully exhausted his administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e. Alternatively, the magistrate judge stated that even if Jones Bey had exhausted his administrative remedies, none of his claims was sufficient to survive

summary judgment. The district court adopted the report and recommendation and granted the defendants’ motion for

summary judgment. B. Factual History 1. Claims Against Defendant Johnson In October 2001, Jones Bey alleges that he was arbitrarily refused his “yard,” or his time to exercise in the prison yard. Johnson claims that Jones Bey was not fully dressed when she came to his cell, and, therefore, he was not entitled to leave his cell. Jones Bey filed a grievance over this incident, in accordance with the Michigan Department of Corrections’ three-step grievance procedure. It was denied at all three steps.

After filing this initial grievance, Jones Bey contends that Johnson engaged in a series of retaliatory acts against him. Johnson allegedly came to Jones Bey’s cell and said, “you like to write grievances huh? You know me and the counselor are related. I’m going to see if I can have him put some pressure on you to break you up from that habit.” Jones Bey filed a grievance concerning this statement which he claims was appealed through Step III, but the record shows that the director’s office never received the grievance.

Jones Bey also contends that five days later, while he was out on his yard period, Johnson searched, or “shook down,” his cell. When Jones Bey returned to his cell, he allegedly found his possessions in disarray and pages torn out of two of his Islamic books. When Jones Bey confronted Johnson on the issue, she allegedly used racial slurs and told him to write a grievance about his complaints. He did file a grievance against Johnson, complaining both about the search and the use of racial slurs.

He attached handwritten affidavits from two other prisoners claiming that they heard the sounds of paper tearing and the toilet flushing when Johnson was searching Jones Bey’s cell. Again, this grievance was not appealed through Step III. Jones Bey sent a letter to the director’s office concerning this grievance, but the return letter indicated that the director had not received Jones Bey’s appeal on this grievance. In December 2001, Jones Bey filed another grievance against Johnson for her use of racial slurs and derogatory language.

He again attached handwritten affidavits from other prisoners who claim to have overheard these comments. This grievance was fully exhausted, but the prison determined that these claims had already been addressed at “the local level” and in Jones Bey’s earlier grievances filed against Johnson.

On the same day, Johnson filed a major misconduct report against Jones Bey alleging “Assault and Battery (staff-victim).” Johnson’s report alleged that in the course of returning Jones Bey to his cell, he spun his body around and swung Johnson’s hands against the food slot as she was trying to remove his handcuffs, resulting in some redness and pain in her hands. Jones Bey, however, claimed that she handcuffed him too tightly and that she pulled on the handcuffs forcing his hands against the food slot. He claims that he suffered “extreme pain” as a result of this altercation, but an X-ray showed no broken bones.

Three days later, Jones Bey filed a grievance against Johnson alleging that Johnson filed the major misconduct report in retaliation for all of the grievances he filed against her. He additionally alleges that Johnson fabricated the misconduct report in order to conceal her alleged misconduct. In January 2002, he was cleared of all wrong doing against Johnson after an independent hearing on the major misconduct charge. Jones Bey alleges that after he was acquitted of the major misconduct, Johnson made threatening remarks about “getting even” and put him in a segregation yard as retaliation.

He filed and exhausted a grievance with respect to this claim. He also filed another grievance against her for alleged use of more racial slurs. This grievance, too, was denied at all three stages. Finally, Jones Bey alleges in his complaint that an officer named Zimmerman “shook down” his cell and confiscated some of his legal papers on Johnson’s orders. However, this complaint was never grieved. Johnson denies all of the allegations against her, claiming that she never made intimidating statements or retaliated against Jones Bey in any way. 2.

Claims Against Defendant Trier-weiler Jones Bey’s only claim against Trier-weiler stems from Trierweiler’s alleged mishandling of grievances filed by Jones Bey. Jones Bey states that Trierweiler arbitrarily rejected or denied his grievances because they were unclear, not concise, contained extraneous information, or related to non-grievable or already grieved issues. He also claims that Trierweiler did not follow the Prisoner’s Grievance Policy set forth by the Michigan Department of Corrections.

When this grievance reached Step III, the director noted that even if Trierweiler denied a grievance at Step I, Jones Bey could always have appealed his complaints to Steps II and III. II. We review the district court’s grant of

summary judgment de novo. Copeland v. Machulis, 57 F.3d 476, 478-79 (6th Cir.1995). Furthermore, we review- the district court’s exhaustion determination in a PLRA case de novo. Curry v. Scott, 249 F.3d 493, 503 (6th Cir.2001). Because Jones Bey’s complaint alleged both exhausted and unexhausted claims, we must definitively answer an open question in this circuit: whether the PLRA requires a complete dismissal of a prisoner’s complaint when that prisoner alleges both exhausted and unexhausted claims. We hold that it does.

The PLRA requires that a prisoner must exhaust administrative remedies before filing suit in the district court. It states: “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) (2004). The plaintiff-prisoner has the burden of proving that a grievance has been fully exhausted, Baxter v. Rose, 305 F.3d 486, 488 (6th Cir.2002), and the prisoner must attach documentation to the complaint as proof. Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.1998). Exhaustion is not jurisdictional; it is mandatory, Wyatt v.

Leonard, 193 F.3d 876, 879 (6th Cir.1999), even if proceeding through the administrative system would be “futile.” Hartsfield v. Vidor, 199 F.3d 305, 308-10 (6th Cir.1999). Although the PLRA’s exhaustion requirement is clearly mandatory as to each individual claim, we have specifically left unanswered the question of whether the PLRA’s exhaustion requirement applies such that a “mixed” complaint, alleging both exhausted and unexhausted claims, must be completely dismissed for failure to exhaust administrative remedies. See Knuckles El v.

Toombs, 215 F.3d 640, 642 (6th Cir.2000) (“We reserve to another day the question of whether exhausted claims in a ‘mixed’ complaint should be addressed when such claims otherwise meet the pleading requirements or whether such a complaint should be dismissed in its entirety.”). Our cases addressing PLRA exhaustion are somewhat inconsistent. At least one of this court’s prior decisions suggests that total exhaustion is not required under the PLRA.

In Hartsfield, 199 F.3d at 309-10, the plaintiffs complaint alleged misconduct by five prison officials; however, the plaintiff only exhausted his administrative remedies against three defendants. Without addressing the issue of total exhaustion, we held that the exhausted claims could be addressed on the merits while the unex-hausted claims could be dismissed without prejudice. Id. This procedure has been followed in some of our unpublished opinions. See Williams v. McGinnis, 234 F.3d 1271, 2000 WL 1679471, at *2 (6th Cir. Nov.11, 2000) (unpublished table decision); McElhaney v.

Elo, 230 F.3d 1358, 2000 WL 1477498, at *3 (6th Cir.2000) (unpublished table decision); Wash v. Rout, 215 F.3d 1328, 2000 WL 658925, at *1 (6th Cir. May 10, 2000) (unpublished table case); Riley v. Richards, 2000 WL 332013, at *2 (6th Cir. Mar.23, 2000) (unpublished table case). However, other unpublished decisions have affirmed the decisions of district courts requiring total exhaustion. See Bomer v. Hakola, 84 Fed.Appx. 585, 587 (6th Cir.2003); Kemp v. Jones, 42 Fed.Appx. 744, 745 (6th Cir.2002); Mack v. DeWitt, 40 Fed.Appx. 36, 38 (6th Cir.2002); Overholt v.

Unibase Data Entry, Inc., 2000 WL 799760, 2000 U.S.App. LEXIS 14087, at *6 (6th Cir. June 14, 2000). Acting without clear guidance from this court, the district courts in this circuit are split on whether the PLRA requires total exhaustion in cases involving “mixed” complaints. Compare Hubbard v. Thakur, 344 F.Supp.2d 549, 558-59 (E.D.Mich.2004) (rejecting total exhaustion rule); Alexander v. Davis, 282 F.Supp.2d 609 (W.D.Mich.2003) (same); and Jenkins v. Toombs, 32 F.Supp.2d 955 (W.D.Mich.1999) (same); with Chamberlain v.

Overton, 326 F.Supp.2d 811, 816 (E.D.Mich.2004) (applying total exhaustion); and Smeltzer v. Hook, 235 F.Supp.2d 736 (W.D.Mich.2002) (same). Similarly, a split exists among the other circuits that have addressed this issue. Compare Ross v. County of Bernalillo, 365 F.3d 1181, 1190 (10th Cir.2004) (applying total exhaustion); Kozohorsky v. Harmon, 332 F.3d 1141 (8th Cir.2003) (same); and Graves v. Norris, 218 F.3d 884 (8th Cir.2000) (same); with Ortiz v. McBride, 380 F.3d 649 (2d Cir.2004) (rejecting total exhaustion).

We now join the Tenth and Eighth Circuits in holding that total exhaustion is required under the PLRA. The dissent suggests we are going contrary to stare decisis by refusing to follow a rule set out in Hartsfield, 199 F.3d at 310. Although that decision follows the principle in application, it does not discuss total/partial exhaustion. Perhaps the issue was not raised by the parties in that case.

We would never suggest repudiating a holding in a prior decision, but the author of the Hartsfield decision was also the author of the subsequent decision in Knuckles El, 215 F.3d at 642, in which this court “reserve[d] for another day” this very question. Id. The author of the dissent herein was also a member of the panel that decided Knuckles El. Moreover, if the decision in Hartsfield was so clear, it is strange why other panels of this court and district courts in this Circuit have not always followed it.

We adopt the total exhaustion rule, in large part, because the plain language of the statute dictates such a result.

Section 1997e(

a) states that no “action” shall be brought in federal court until administrative remedies have been exhausted. However, in subsection (c), the statute allows district courts to dismiss frivolous “actions” or “claims.” 42 U.S.C. § 1997e(c)(l) & (2). Congress’s use of the word “claims” in subsection (c)(2) indicates that “claims” are individual allegations and “actions” are entire lawsuits. See Ross, 365 F.3d at 1190 (“To start, the language in § 1997(

a) itself suggests a requirement of total exhaustion because it prohibits an ‘action’ (as opposed to merely preventing a ‘claim’) from proceeding until administrative remedies are exhausted.”); see also Smeltzer, 235 F.Supp.2d at 744. Furthermore, reading subsection (

a) and subsection (c)(2) together demonstrate that Congress intended for “action” to mean “suit.” If a district court is presented with a “mixed” petition, it has the power under subsection (c)(2) to dismiss any frivolous claims, exhausted or not, with prejudice. However, dismissal under subsection (

a) allows the court to dismiss the entire action without prejudice. The Smeltzer court recognized that Congress must have intended that courts could use subsection (c)(2) to dismiss unexhausted claims as frivolous to keep them from “holding up” the others. Smeltzer, 235 F.Supp.2d at 744. In the alternative, the court could dismiss the entire action without prejudice and allow the prisoner to re-file only exhausted claims. The policies underlying the PLRA also suggest that Congress intended the courts to apply total exhaustion to a prisoner’s petition.

One purpose of the act is to reduce the sheer number of prisoner suits, especially frivolous actions. See Ortiz, 380 F.3d at 658 (citing 141 Cong. Rec. 26,553 (1995)) (statement of Sen. Hatch). Congress also intended to give increased powers to prisons so that they could solve their problems according to their own internal dispute resolution systems. See Alexander v. Hawk, 159 F.3d 1321, 1326 n. 11 (11th Cir.1998) (citing 141 Cong. Rec.

S14408-01, S417748) (Sept. 27, 1995). “In the PLRA context, a total exhaustion rule would encourage prisoners to make full use of inmate grievance procedures and thus give prison officials the opportunity to resolve prisoner complaints.” Ross, 365 F.3d at 1190. When the courts dismiss the actions without prejudice, prisons would have the opportunity to fully resolve the complaint.

If the complaint cannot be resolved within the prison, the prisoner could file an action in court with a complete “administrative record that .would ultimately assist federal courts in addressing the prisoner’s claims.” Id.; see also Rivera v. Whitman, 161 F.Supp.2d 337, 341-42 (D.N.J.2001). Additionally, adopting the total exhaustion rule creates comity between § 1983 claims and habeas corpus claims. The Supreme Court requires total exhaustion in habeas cases to allow state courts the first opportunity to solve prisoners’ cases because they are arguably in a better position to analyze and solve the problems.

See Preiser v. Rodriguez, 411 U.S. 475, 492, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). The PLRA, too, was enacted to allow state prison systems the first chance to solve problems relating to prison conditions. Because both bodies of law were created for similar reasons, their exhaustion rules should be interpreted in a similar manner. Courts which have not applied the total exhaustion rule claim that there is little similarity between habeas petitions and § 1983 actions. These courts note that total exhaustion is required in the habeas context out of a need for state sovereignty.

See Ortiz, 380 F.3d at 660; Jenkins, 32 F.Supp.2d at 957. However, these courts fail to recognize that while state courts have an interest in resolving habeas cases, state prison systems have a similar interest in resolving cases involving their own institutions. This circuit has already noted the similarities between habeas petitions and § 1983 claims. -In Brown v. Toombs, we noted: “The [PLRA] has extensive benefits.

It recognizes that it is difficult to explain why we require full exhaustion in habeas corpus cases involving life and liberty, but allow direct access in prison rights cases under § 1983.” 139 F.3d at 1103. Because we recognize the correlation between habeas petitions and § 1983 actions, we find it appropriate to interpret the PLRA exhaustion requirements in light of habeas corpus rules. Adoption of the total exhaustion rule would also deter prisoners from bringing additional, piecemeal litigation. See Ross, 365 F.3d at 1190.

A prisoner whose mixed complaint was dismissed by the district court would be left with two options. First, he could wait until all of his claims are exhausted and re-file the action at that time. Or, he could simply institute an action with only the exhausted claims, and then later bring other actions in court after the other issues have been fully addressed through the prison grievance process. While it is true that refiling an action would require an additional filing fee, we reject the notion that this rule is “unduly punitive,” because it does not prevent the prisoner from proceeding in forma pauperis.

Contra Jenkins v. Toombs, 32 F.Supp.2d at 959. Under the total exhaustion rule, a prisoner will have the choice of bringing forth each exhausted claim one at a time, at a potentially greater expense to himself, or to wait and bring all exhausted claims together in one action. Furthermore, we reject the notion that the total exhaustion rule would create additional, rather than fewer, prisoner lawsuits. Contra Ortiz, 380 F.3d at 658 (noting that “such a regimen would create an incentive for prisoners to file

section 1983 claims, if they have more than one, in more than one lawsuit”). Even the Ortiz court recognized that there are significant procedural rules in place that would encourage bringing all exhausted claims in one action, rather than filing separate actions for each individual claim. See id. at 658 n. 7. The most obvious deterrent is the filing fee. However, the “three strikes” rule, codified in 28 U.S.C. § 1915(g), creates an additional incentive for prisoners to join all of their issues in one action. Finally, we believe that the total exhaustion rule could be easily administered by the district courts.

As noted in Ross, this rule “would relieve district courts of the duty to determine whether certain exhausted claims are severable from other unexhausted claims that they are required to dismiss.” 365 F.3d at 1190 (citing Rose v. Lundy, 455 U.S. 509, 519, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982)). The district courts would simply apply the familiar rule from the habeas context to § 1983 claims. Furthermore, prisoners who are well acquainted with this rule in the habeas context should “be expected to adhere to this straightforward exhaustion requirement” in the § 1983 context.

Id. -For the reasons stated above, we now adopt the total exhaustion rule and we REVERSE and REMAND this case to the district court to dismiss Jones Bey’s petition without prejudice. . Jones Bey also set forth a complaint for ethnic intimidation under Michigan state law. Because the district court dismissed all of his federal claims, it declined to exercise supplemental jurisdiction over this claim. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). .

The Michigan Department of Corrections regulations require the prisoner to first file a grievance with the internal grievance coordinator at the prison in which he is incarcerated. If the grievance is denied at this level, the prisoner can appeal it to the prison's warden. If denied a second time, the prisoner can exercise a final appeal to the office of the Michigan Department of Corrections' director. See MDOC Policy Directive 03.02.130. Once the prisoner has undertaken all three of these steps, his grievance is considered fully exhausted. .

Apparently there is a grievance counselor at the prison named Robert Johnson. Defendant Johnson denies both that she is related to Robert Johnson and that she made this statement. . Issues involving major misconduct reports are not grievable, presumably because the misconduct hearing should settle all claims relevant to the alleged misconduct. Jones Bey alleges that Johnson filed a major misconduct report in order to preclude him from filing a grievance. Because Johnson filed her misconduct before Jones Bey could file a grievance, Jones Bey had no choice but to defend his position at the hearing. .

Jones Bey contends that the Kozohorsky case effectively overrules Graves v. Nonis. This allegation-which was taken from Alexander v. Davis, 282 F.Supp.2d 609, 612 (W.D.Mich.2003)-is without merit. The Koz-ohorsky case clearly indicates that the Eighth Circuit abides by the total exhaustion rule. Kozohorsky, 332 F.3d at 1143. However, it allowed the plaintiff to cure his complaint by deleting unexhausted claims. Id. at 1144. . The dissent cites Wilkinson v.

Dotson, - U.S. -, -, 125 S.Ct. 1242, 1246, 161 L.Ed.2d 253 (2005), to show that habeas corpus and § 1983 cases are “inherently different.” It quotes that "habeas corpus actions require a petitioner fully to exhaust state remedies which § 1983 does not.” Id. While this statement is true, exhaustion is still required in prisoner § 1983 cases, only the exhaustion must occur within the prison system.

Furthermore, the Court's discussion of habeas corpus and § 1983 claims does not suggest drawing comparisons between the two cases is inappropriate, only that the procedures were created for hearing distinct types of claims. Id. at 1246-49. . The dissent also notes that drawing comparisons between habeas corpus and § 1983 cases is inappropriate in light of the recent case of Rhines v. Weber, - U.S. -, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). In Rhines, the Court held that, in certain circumstances, a district court may stay a habeas case until all of the prisoner's claims are exhausted. Id. at 1535-36.

This case did not, however, eliminate or lessen the "total exhaustion” requirement. Id. at 1533. Because we are not dealing with a case in which the district court stayed the proceedings pending exhaustion, we decline to address the applicability of Rhines to § 1983 cases. . Under this statute, a prisoner who files an action in forma paupris receives a "strike” if the action is “frivolous, malicious, or fails to state a claim upon which relief may be granted.” Id. Once the prisoner accrues three "strikes,” that prisoner is barred from proceeding in forma pauperis in any additional § 1983 action.

Although the prisoner is not totally barred from filing claims in court, he must now do so at his own expense. . Jones Bey alternatively argues that he did exhaust his administrative remedies, but his attempts at exhaustion were frustrated by Twierweiler. Although exhaustion is mandatory, see Thomas v. Woolum, 337 F.3d 720, 725 (6th Cir.2003), prison officials do not have to affirmatively provide information on how to proceed with individual claims. Brock v. Kenton County, 2004 WL 603929, at *3 (6th Cir. Mar.23, 2004).

We recently held that when a prison "totally fail[s] to respond to [a] grievance,” that grievance should be considered exhausted for the purposes of § 1997e(a). Boyd v. Corrections Corporation of America, 380 F.3d 989, 996 (6lh Cir.2004). The prisoner in Boyd submitted evidence that he filed a grievance, that the grievance was delivered to the appropriate office, and that the officials did not respond. Id. Even under this rule, Jones Bey cannot show that he exhausted his administrative remedies.

Although he presents evidence that he started the process and even wrote letters inquiring on the status of his grievances, he has not proven that the grievance was appropriately delivered to the correct office. Thus, Jones Bey's case can be distinguished from the plaintiff in Boyd. Furthermore, Jones Bey’s reliance on Thomas v. Woolum, 337 F.3d 720 (6th Cir.2003), is misplaced. Thomas requires a prisoner to exhaust his administrative remedies, even if those remedies are no longer timely. Id. at 727.

As evidenced by his brief and some of his other grievances, he understood the need to exhaust futile claims, including those that were untimely. For these reasons, Jones Bey cannot prove that administrative remedies were unavailable to him.