Sublett v. Howard, No. 0:2018cv00078 - Document 5 (E.D. Ky. 2018)

Court Description: MEMORANDUM OPINION & ORDER: 1. Sublett's complaint DE 1 is DISMISSED without prejudice. Sublett may file a new complaint re his claims once he has fully exhausted his administrative remedies. 2. Any and all pending motions are DENIED AS MOOT. 3. This action is STRICKEN from the Court's docket. 4. A corresponding judgment will be entered this date. Signed by Judge Henry R. Wilhoit, Jr on 8/8/18.(KSS)cc: COR, Sublett (via US Mail)
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Sublett v. Howard Doc. 5 Eastern District of' Kentucky UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION at ASHLAND FILED AT ASHLAN ROBERT R. CA R DAMIEN A. SUBLETT, CLERK U.S. DISTRIC COURT ) ) Plaintiff, ) ) ) ) ) ) ) ) v. JASON S. HOWARD, Defendant. Civil No. 0:18-078-HRW MEMORANDUM OPINIO AND ORDER *** *** *** *** Damien A. Sublett is an inmate at the Little Sandy Correctional Comp ex in Sandy Hook, Kentucky. Proceeding without an attorney, Sublett recently led a civil rights complaint with this Court. [D. E. No. I]. Sublett alleges that, on July 3, 2018, a prison officer impermissibly sea ched him simply because he is Muslim and was attending a religious service. [Id. at 2-3]. Sublett further alleges that he told the officer that his conduct was discrimin tory and that the officer "became belligerent" in response. [Id. at 3]. Sublett then al eges that he asked to speak with the officer's supervisor, but that the officer st rted screaming at him and ordered him to leave the area. [Id.]. Sublett alleges that, the next day, the officer issued him "a disciplinary r port for a possible disruption." [Id. at 4]. Sublett then alleges that he "was seen fo this 1 Dockets.Justia.com disciplinary report on July 12, 2018 and was found guilty and sentenced to 15 day[ s] [of] disciplinary segregation." [Id.]. Finally, Sublett alleges that he appeal d the disciplinary decision to the Warden, but the Warden ultimately denied his [Id.]. Sublett then filed his civil rights complaint with this Court. Sublett do snot directly challenge the prison's decision to discipline him for the incident in qu stion; instead, he claims the officer violated his First Amendment rights by (1) sea ching him simply because of his religious beliefs and (2) retaliating against hi for complaining about the officer's behavior. [Id. at 4-5, 8]. Sublett is seeking mo damages and injunctive relief. [Id. at 8]. This Court, however, will dismiss Sublett's complaint without prej dice because it is apparent from his submission that he has not yet fully exhaust d his administrative remedies with respect to his First Amendment claims. See Jo es v. Bock, 549 U.S. 199, 214-15 (2007) (indicating a district court may sua s onte dismiss a complaint when it is apparent the claim is barred by an affirm tive defense); Fletcher v. Myers, No. 5:1 l-cv-141-KKC (E.D. Ky. 2012), ajf'd, N . 125630 (6th Cir. 2013) ("Because Fletcher's failure to exhaust, or to attempt to exh ust, administrative remedies is apparent from the face of his complaint, the district ourt properly dismissed Fletcher's complaint on that basis."). After all, the Kent cky Department of Corrections' inmate grievance procedure involves four steps: ( ) an 2 initial written grievance and informal resolution, (2) a grievance committee h aring, (3) an appeal to the Warden, and (4) an appeal to the Commissioner. See Ky Corr. Policies & Procedures 14.6(1). And, in this case, Sublett indicates that he erely made an "oral grievance" regarding his claims. [D. E. No. 1 at 6]. In fact, explains that the "oral grievance" to which he is referring is simply his initi 1 oral complaint that he made directly to the prison officer who allegedly discrim nated against him. [Id.]. Thus, it is clear from Sublett's submission that he has t yet completed Kentucky's four-step grievance process. To be sure, Sublett does state in his complaint that he "made I l I oral grievance" to the officer and thereafter "received a disciplinary write up which\avert prevent the document grievance." [D. E. No. 1 at 6 (emphasis added)]. Sfblett i appears to be suggesting that the officer's alleged retaliation somehow him from fully completing the formal grievance process with respect to his I But Sublett does not allege that prison administrators thwarted him from 4king advantage of the grievance process, which would have meant that the grievance procedures were not truly available to him. See Ross v. Blake, 136 I l Ct. I 1850, 1860(2016). Instead, Sublett makes it clear that internal grievance proce4ures : were available to him; after all, he repeatedly acknowledges that he was able to appeal the disciplinary decision to the Warden, who denied his appeal. [D. E. lfo. 1 ' at 4, 6]. Since Sublett makes it clear that internal grievance procedures tere 3 I ' available to him, and he has not yet fully exhausted those procedures with res ect to his First Amendment claims, the Court will dismiss his complaint without pre udice. Accordingly, it is hereby ORDERED as follows: 1. Sublett's complaint [D. E. No. 1] is DISMISSED without prej dice. Sublett may file a new complaint regarding his claims once he ha fully exhausted his administrative remedies. 2. Any and all pending motions are DENIED AS MOOT. 3. This action is STRICKEN from the Court's docket. 4. A corresponding judgment will be entered this date. This \'J '-'-_o_ day of August, 2018. Signed By: Henry R. Wiihoit. Jr. United States District Judge 4