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UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
CLYDELL MACK,
Plaintiff-Appellant,
v.
DON DEWITT, Warden, et al.,
Defendants-Appellees.
April 30, 2002, Filed
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NOT RECOMMENDED FOR FULL-TEXT
PUBLICATION.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.
Clydell Mack, a pro se Ohio prisoner, appeals a district court judgment
dismissing his civil rights complaint construed as filed pursuant to 42 U.S.C.
§ 1983. This 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 and injunctive
relief, Mack filed suit against the director of the Ohio Department of
Rehabilitation and Correction (Wilkinson), a former prison warden (DeWitt), and
three corrections officers (Burchwell, Radcliff, and Ray). Mack asserted that
prison officials had harassed him, denied him food and hygiene, stolen his
personal property and mail, assaulted him, and transferred him to another
prison without notice. The defendants filed a motion to dismiss, arguing in
part that Mack had failed to exhaust his administrative remedies. After careful
consideration, a magistrate judge recommended dismissing Mack's complaint for
lack of exhaustion. See 42 U.S.C. § 1997e(a). The district court did so, upon
de novo review and over Mack's objections.
In his timely appeal, Mack
essentially reasserts his claims and attaches proof of exhaustion.
Upon de novo review, we conclude that the district court properly
dismissed the action for failure to exhaust administrative remedies. See Curry v. Scott, 249 F.3d 493, 503 (6th Cir.
2001). The Prison
Litigation Reform Act of 1995 requires a prisoner to exhaust all available
administrative remedies before filing federal lawsuits challenging prison
conditions, even if the prisoner is seeking monetary damages. See 42
U.S.C. § 1997e(a); Booth v. Churner , 532 U.S. 731, 740-41, 121 S. Ct. 1819,
1825, 149 L. Ed. 2d 958 (2001); Wyatt v. Leonard, 193 F.3d 876, 877 (6th Cir.
1999); Wright v. Morris, 111 F.3d 414, 417 (6th Cir. 1997). The prisoner must allege and
demonstrate that he has exhausted all available administrative remedies and
should attach the decision containing the administrative disposition of his
grievance to the complaint, or in the absence of written documentation,
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); Wyatt, 193 F.3d at 878; Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.
1998). When a prisoner
fails to exhaust his administrative remedies before filing a civil rights
complaint in federal court, or only partially exhausts administrative remedies,
dismissal of the complaint is appropriate. See 42 U.S.C. § 1997e(a);
White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997) (order).
Ohio's grievance procedure
permits an inmate to challenge "any aspect of institutional life."
See Ohio Admin. Code § 5120-9-31(B). To begin grievance proceedings, the inmate
must first attempt to resolve the grievance by contacting the appropriate
institutional department or staff member before notifying the inspector of
institutional services. See § 5120-9-31(F); Freeman v. Francis, 196 F.3d 641,
644 n.4 (6th Cir. 1999). If the inmate is not satisfied by the inspector's
resolution of the grievance, he may appeal to the chief inspector. See §
5120-9-31(H)(8). The grievance procedure calls for written responses from both
the inspector of institutional services and the chief inspector. See §
5120-9-31(H)(7) and (8).
Mack did not demonstrate that he
had exhausted all available administrative remedies by the time he filed his
complaint. See Brown, 139 F.3d at
1104. He did not attach any grievances or dispositions to his complaint, or
make particularized averments, but instead summarily [*39] stated that he had
filed Grievance No. 11-00-13 and had also contacted the Ohio Highway Patrol. Although
Mack has now submitted a copy of a decision by the chief inspector in his
appellate brief, this does not warrant vacating the district court's decision. The chief inspector's
decision of October 23, 2001, post-dates the district court's judgment of
September 18, 2001. The decision does not cure the exhaustion defect as a
plaintiff must exhaust the administrative remedies prior to filing suit and not
while his suit is pending in federal court. See Freeman, 196 F.3d at 645.
Furthermore, the letter is not properly before the court as it was not part of
the district court record. See Fed. R. App. P. 10(a).
Accordingly, the district court's judgment is affirmed. Rule
34(j)(2)(C), Rules of the Sixth Circuit.