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DAVID M. LYONS-BEY, Plaintiff-Appellant, v. BRUCE CURTIS, Warden, et
al., Defendants-Appellees.
No. 01-1574
2002 U.S. App. Lexis 2223; 30
Fed. Appx. 376
NOTICE:
NOT RECOMMENDED FOR
FULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE 28(g) LIMITS CITATION TO SPECIFIC
SITUATIONS. PLEASE SEE RULE 28(g) BEFORE CITING IN A PROCEEDING IN A COURT IN
THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE
COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS
REPRODUCED.
ORDER
David M. Lyons-Bey appeals a district court order dismissing his civil
rights action filed under 42 U.S.C. § 1983. The case has been referred to a
panel of the court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. Upon
examination, this panel unanimously agrees that oral argument is not needed.
Fed. R. App. P. 34(a).
Seeking monetary, declaratory,
and injunctive relief, Lyons-Bey sued
several Michigan correctional officials and personnel, alleging that he
was improperly kept in a hot prison cell with poor ventilation that caused him
respiratory discomfort. The district court concluded that Lyons-Bey had not
administratively exhausted his claims and dismissed the case without prejudice.
Although Lyons-Bey filed a motion to alter or amend the judgment, the court
denied the motion as meritless. Lyons-Bey has filed a timely appeal.
Upon review, we conclude that the district
court properly dismissed Lyons-Bey's claims for failure to exhaust his
administrative remedies. This court reviews de novo the district court's dismissal of a suit for
failure to exhaust available administrative remedies under 42 U.S.C. §
1997e(a). Curry v. Scott, 249 F.3d 493,
503 (6th Cir. 2001).
Lyons-Bey did not exhaust his
administrative remedies for any of his claims. Under § 1997e(a), a
prisoner must exhaust all of his available administrative remedies before
filing a § 1983 action in federal court, Brown v. Toombs, 139 F.3d 1102,
1103-04 (6th Cir. 1998), and the prisoner has the burden of demonstrating that
he has exhausted these remedies. Id. at
1104. Before the district court adjudicates any claim set forth in the plaintiff's
complaint, the court must determine that the plaintiff has complied with this
exhaustion requirement. Id. Section 1997e(a) requires the prisoner to exhaust
his administrative remedies prior to filing suit and, therefore, he can not
exhaust these remedies during the pendency of the action. Freeman v. Francis, 196 F.3d 641, 645 (6th
Cir. 1999). The prisoner must exhaust his remedies as to all claims arising
from his confinement, including excessive force, equal protection, and other
constitutional claims. Curry, 249 F.3d
at 503-04; Hartsfield v. Vidor, 199 F.3d 305, 308 (6th Cir. 1999); Freeman, 196
F.3d at 643-44. The
prisoner can not "abandon the process before completion and claim that he
has exhausted his remedies or that it is futile for him to do so because his
grievance is now time-barred under the regulations." Hartsfield,
199 F.3d at 309. To establish that he has exhausted his administrative remedies
prior to filing suit, a prisoner should attach to his § 1983 complaint any
decision demonstrating the administrative disposition of his claims or describe
with specificity the administrative proceeding and its outcome. Knuckles El v. Toombs, 215 F.3d 640, 642
(6th Cir.), cert. denied, 531 U.S. 1040, 148 L. Ed. 2d 542, 121 S. Ct. 634
(2000). "In the absence of particularized averments concerning exhaustion
showing the nature of the administrative proceeding and its outcome, the action
must be dismissed under § 1997e." Id.
Lyons-Bey failed to fully
exhaust his administrative remedies. Lyons-Bey presented to the district court
a copy of a grievance form, but the form does not reflect that Lyons-Bey ever
appealed the denial of the grievance. The district court consequently
concluded that Lyons-Bey had not fully exhausted his administrative remedies for
the claims raised in the grievance. On appeal, Lyons-Bey contends that he filed his grievance directly
to the Step III level of review, as permitted under the applicable
administrative rule; therefore, he asserts that he could file no appeal from
the denial of this grievance. Indeed, certain grievances involving claims of
discrimination, brutality, or corruption may be taken directly to Step III
review under the Michigan Department of Corrections' Policy Directive §
03.02.130(II). Lyons-Bey asserts that, since his claims involved brutality, he
was allowed to seek direct Step III review. However, Lyons-Bey's claims of being kept in a stuffy and hot cell do not
fall within the ordinary meaning of brutality, and he provides no other
argument that would bring his claims under that definition. Consequently, he
did not follow the proper procedures for obtaining administrative review of
his claims.
While Lyons-Bey also argued in the district court that he could not further
pursue his administrative remedies because the grievance coordinator refused to
provide him with the necessary forms, he does not raise this claim on appeal.
Therefore, this argument is considered abandoned and not reviewable. Robinson v. Jones, 142 F.3d 905, 906 (6th
Cir. 1998).
Accordingly, this court affirms the district court's judgment. Rule
34(j)(2)(C), Rules of the Sixth Circuit.
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