United States District Court, D. North Dakota, Southwestern Division
REPORT AND RECOMMENDATION
CHARLES S. MILLER, Jr., Magistrate Judge.
Before the court is "Defendant Burleigh County's Motion to Dismiss" filed February 20, 2014. Defendant argues that this action should be dismissed because plaintiff failed to exhaust his administrative remedies and that plaintiff's mental anguish claims should be dismissed because plaintiff failed to show physical injury. Judge Hovland has referred this matter to the undersigned for review. For the reasons set forth below, it is recommended that the motion be denied.
At the time this action commenced, plaintiff Alahaji Mohamed Musa Kanneh ("Kanneh") was a pretrial detainee at the Burleigh County Detention Center ("BCDC") in Bismarck, North Dakota. He has since entered a guilty plea and was sentenced to a term of imprisonment of time served in the federal criminal case.
In his amended complaint,  he alleges:
I was in Burleigh County Detention Center in Bismarck, North Dakota in April 2012. When I got booked in I told Burleigh County Jail Staff that I do not eat pork because of my religious beliefs and that I am Muslim. They continue to feed me pork over and over again over the course of the eleven months I was incarcerated. I continually wrote requests to be put on a no pork diet and also wrote grievance after grievance to try to alleviate this problem. There was no action taken in this matter. I also filed a complaint with the department of Health & Human Services (Appendix A) and The Department of Labor (Appendix B). I tried to talk to Lieutenant Greg but he refused to talk to me or respond to any of my requests or grievances. Day after day, week after week, month after month, they refused to make me a no pork meal. This matter had gotten out of hand do to the fact I had been constantly feed pork and no response had been given to my requests for a no pork diet and I ended up being transferred to the detox area of the jail. Other inmates in the detox area got a hot meal for lunch and dinner and I got cold sack meal for both meals every day. Burleigh County Detention Center staff members had refused to give me copies of my grievances I had asked numerous Jail Officers for copies of these grievances. They told me they do not have access to my grievances and that Lieutenant Greg is the only one who has access to my grievances. I have had written kites to Lieutenant Greg requesting copies of my grievances which Lieutenant Greg has refused to respond to. After not getting any response to my requests or grievances I wrote one final grievance in duplicate (See Appendix C) had eyewitnesses sign it and kept my copy and still received no response.
(Docket No. 16, pp. 3-4) (errors in original).
In his request for relief, he states:
Defendants through Deliberate Indifference to Plaintiff's religious beliefs did violate Plaintiff's Eighth and Fourteenth amendment rights and caused undue mental anguish to the Plaintiff for which the Plaintiff will seek punitive damages and Plaintiff also will seek the full amount allowed by North Dakota State Law and United States Law, this amount to be determined by a North Dakota Court for the recovery of punitive and compensatory damages. And United States District Court for Violation of plaintiff's civil and constitutional right under a Title 42 U.S.C. § 1983, A prisoner's complaint for violation of civil rights. AND ANY OTHER RELIEF THIS COURT DEEMS JUST.
(Docket No. 16, p. 5) (errors in original).
A. Exhaustion of administrative remedies
Defendant argues that "[a]s a threshold and jurisdictional matter... the Court is without jurisdiction to address the merits of this lawsuit given the requirements of 42 U.S.C. § 1997e of the Prison Litigation Reform Act, which requires a prisoner seeking legal redress with respect to prison conditions first exhaust administrative remedies prior to bringing any legal action in the courts, which plaintiff has wholly failed to do." (Docket No. 26, p. 2). Defendant has submitted the affidavit of Captain Lisa Wicks, a BCDC employee, in support of its motion. (Docket No. 27). Kanneh argues that the motion should be denied because he submitted several grievances but was unable to exhaust the BCDC's grievance procedure because BCDC staff failed to respond to his grievances.
Section 1997e(a) of the Prison Litigation Reform Act ("PLRA") 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." The administrative remedies an inmate must comply with are established by the correctional facility's grievance procedures. Jones v. Bock, 549 U.S. 199, 218 (2007). An administrative remedy is not "available" when prison officials prevent an inmate from utilizing the procedure, Miller v. Norris, 247 ...