FRED TREESH, et al., Plaintiffs, v. BOB TAFT, et al., Defendants.



Case No. C-2-99-624



UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO, EASTERN DIVISION



122 F. Supp. 2d 881; 2000 U.S. Dist. LEXIS 15222



March 20, 2000, Filed







DISPOSITION: [**1] Defendants' motion to dismiss DENIED. Plaintiffs leave to file an Amended Complaint in order to ensure that their factual allegations accurate GRANTED.







COUNSEL: For FRED TREESH, MELVIN BONNELL, plaintiffs: Kevin Francis O'Neill, Cleveland-Marshall College of Law, Cleveland, OH.


For BOB TAFT, REGINALD WILKINSON, STEPHEN HUFFMAN, defendants: Todd Robert Marti, Ohio Attorney General, Columbus, OH.



JUDGES: Joseph P. Kinneary, UNITED STATES DISTRICT JUDGE.



OPINIONBY: Joseph P. Kinneary



OPINION: [*882]

OPINION AND ORDER

This matter is before the Court on Defendants' motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1). (Doc. # 6.) For the reasons stated below, the Court DENIES Defendants' motion.

I. BACKGROUND

This case involves a First Amendment challenge to a prison policy that regulates the last statements of condemned prisoners. Compl. at P 1. The policy, known as SOCF W-05-94, prohibits death row inmates from making a final oral statement, audible to spectators, in the moments before their executions. Id. at P 2. Rather, if a death row inmate wishes to make a last statement, he must do so in writing approximately [**2] six hours before his scheduled execution. Id.; (Doc. # 6 at Ex. A-2.) If the inmate chooses to write out a statement, the statement will be delivered to the warden and typed. (Doc. # 6 at Ex. A-2.) The policy provides that the typed statement will not be distributed and read until after the inmate is executed. (Id.)

Plaintiffs in this case are two death row inmates who wish to make a final statement in the moments before their executions. Compl. at P 7-8. Plaintiffs name as Defendants Bob Taft, Governor of the State of Ohio; Stephen Huffman, Warden of the Southern Ohio Correctional Facility at Lucasvile, Ohio, where all Ohio executions take place; and Reginald Wilkinson, Director of the Ohio Department of Rehabilitation and Correction. Id. at P 9-11. All Defendants are sued solely in their official capacities. Id.

Plaintiffs assert two constitutional challenges to the policy. (Doc. # 7 at 2.) The first challenge focuses on the policy itself. Plaintiffs assert that death row inmates have an affirmative constitutional right to make a last oral statement in the moments before execution. According to Plaintiffs, the policy, on its face, violates the First Amendment because [**3] it deprives death row inmates of this right and "affords condemned prisoners no opportunity to make a last oral statement, audible to spectators, after being led into the death chamber for their final minutes of life." Compl. at P 2. Plaintiffs' second challenge focuses on the way the policy will be carried out. Plaintiffs assert that the policy violates the First Amendment because the warden "enjoys complete editorial control over the prisoner's statement, with unfettered discretion to change it, cut it, summarize it, or censor it altogether." Id. Thus, Plaintiffs assert both a facial attack and an as-applied challenge to the policy. Plaintiffs seek declaratory and injunctive relief barring Ohio officials from enforcing the policy and requiring them to restore to condemned prisoners the opportunity "to communicate their last words as they stand on the brink of extermination." Id. at P 3. [*883]

On July 27, 1999, Defendants filed a motion to dismiss this case for lack of subject matter jurisdiction. (Doc. # 6.) Defendants set forth two independent arguments in support of their motion. First, Defendants assert that this case is moot because prison officials amended the policy in question [**4] more than one year ago to eliminate the possibility of any editing or other limitations on the content of the prisoners' last statements. (Id. at 2.) Second, Defendants contend that Plaintiffs' claims are not ripe for review because both Plaintiffs are pursuing appeals of their convictions and sentences. (Id.) Thus, according to Defendants, it is uncertain when, if ever, either of the Plaintiffs will be in a position to seek to issue their last statements. (Id.) That motion is now before the Court for consideration.

II. STANDARD OF REVIEW

Defendants move for dismissal pursuant to Rule 12(b)(1). The Sixth Circuit adopted two standards of dismissal for lack of subject matter jurisdiction under Rule 12(b)(1) depending upon whether the movant makes a facial or factual attack on the plaintiff's complaint. See Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). A facial attack merely questions the sufficiency of the pleadings. In reviewing a facial attack, the Court applies the same standard applicable to Rule 12(b)(6) motions. On the other hand, where a district court reviews a plaintiff's complaint under a factual attack, [**5] the Court does not presume that the plaintiff's allegations are true. In such cases, the Court has wide discretion to allow affidavits, documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts. See id.; see also Tennessee Protection & Advocacy, Inc. v. Board of Educ., 24 F. Supp. 2d 808, 812-13 (1998). The case at bar involves a factual attack to the sufficiency of Plaintiffs' pleadings. Thus, the Court must "weigh the conflicting evidence to arrive at the factual predicate that subject matter jurisdiction exists or does not exist." Ohio Nat'l Life Ins. Co., 922 F.2d at 325. It is with this standard in mind that the Court examines Defendants' motion.

III. ANALYSIS

Article III of the United States Constitution confines the jurisdiction of the federal courts to actual "cases" and "controversies." U.S. Const. art. III, § 2. The case or controversy requirement "defines, with respect to the Judicial Branch, the idea of separation of powers on which the Federal Government is founded." National Rifle Assoc. of America v. Magaw, 132 F.3d 272, 279 (6th Cir. 1997). In order to further define the case [**6] or controversy requirement, federal courts developed a series of principles termed "justiciability doctrines." Id. The doctrines of mootness and ripeness at issue in this case are a subset of the justiciability doctrines. The Court addresses each of these doctrines in turn.

A. Mootness

The doctrine of mootness requires a live case or controversy when a federal court decides a case. See Burke v. Barnes, 479 U.S. 361, 363, 93 L. Ed. 2d 732, 107 S. Ct. 734 (1987); Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637, 644 (6th Cir. 1997). A case can become moot for one of two reasons: either because "the issues presented are no longer 'live'" or because "the parties lack a cognizable interest in the outcome." United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396, 63 L. Ed. 2d 479, 100 S. Ct. 1202 (1980). When a case involves a challenge to a statutory provision, repeal or amendment of the provision while a case is pending "usually eliminates [the] requisite case-or-controversy because a statute [or policy] must be analyzed . . . in its present form." Kentucky Right to Life, 108 F.3d at 644 (citing [**7] Kremens v. Bartley, 431 U.S. 119, 129, 52 L. Ed. 2d 184, 97 S. Ct. 1709 (1977)). When a challenge to a statute or policy is predicated upon the First Amendment, "the Supreme Court has routinely declared [*884] moot those claims effectively nullified by statutory amendment . . . ." Id.

In the present case, Defendants submit that this case is moot because prison officials amended the policy in 1998 to eliminate the possibility of any editing or other limitations on the content of prisoners' last statements. (Doc. # 6 at 6.) According to Defendants, the current policy provides that the statements will be typed and distributed as written by the prisoner. (Id.) Therefore, Defendants contend that the current policy does not censor prisoners' last words and that Plaintiffs' pleadings incorrectly refer to the now defunct 1997 policy. (Id.)

The Court recognizes that the policy in question was first adopted in 1997 and then revised in 1998. The Court also recognizes that Plaintiffs' Complaint refers to the 1997 policy rather than the amended version. Thus, in order to determine the merit of Defendants' mootness argument, the Court must examine the language of both the [**8] original and the amended version of the policy at issue in this case.

The Ohio Department of Rehabilitation and Correction ("ORDC") first adopted the policy in question in May of 1997. The 1997 policy provided, in pertinent part, that approximately six hours before a scheduled execution:


[the] inmate will be asked to write his last statement, if any. The draft of the statement will be given to a member of the execution team, who will forward it to the Warden for transcribing and copying. The statement will be read by the Warden in the execution chamber after the execution has been completed, and then by an official media witness[] after the media briefing.


(Id. at Ex. A-1.)

In February 1998, prison officials revised the policy. These revisions resulted in the current ORDC policy on prisoners' last statements. The revised policy provides, in pertinent part, that approximately six hours before a scheduled execution:


[the] inmate will be asked to write his last statement, if any. The statement will be given to a member of the execution team, who will forward it to the Warden for transcribing and copying. The statement will be provided to the execution [**9] witnesses and the media after the execution is completed.


(Id. at Ex. A-2.)

After analyzing the text of both the original and the revised versions of the policy, the Court finds Defendants' mootness argument to be without merit. That is, the Court concludes that the essence of Plaintiffs' claims are not moot as a result of the 1998 revisions to the prison policy.

As stated previously, Plaintiffs' Complaint sets forth two separate challenges to the prison policy. The first challenge is a facial attack, which focuses on the fact that the policy, on its face, absolutely prohibits a prisoner from speaking his last words. An analysis of both the original and revised versions of the policy reveals that this facial attack has not been rendered moot by the 1998 revisions. Both versions of the policy provide that approximately six hours before a scheduled execution, a condemned prisoner "will be asked to write his last statement, if any," and that the written statement will be distributed only after the prisoner is dead. (Id. at Ex. A-1 & A-2.) Thus, under both versions of the policy, a condemned prisoner is completely prohibited from making a last oral statement prior to [**10] his execution. Stated differently, "under both the original and revised version[s] of the policy, the traditional privilege to make a last dying speech is replaced with an opportunity merely to write out a final statement six hours before the execution." (Doc. # 7 at 7.) Thus, the basis for Plaintiffs' facial attack against the policy -- that it prohibits a prisoner from speaking his last words -- remains unaffected by the 1998 revision, which only permits a prisoner to write out a final statement. Therefore, because the essence of Plaintiffs' facial challenge remains unchanged by the [*885] revisions, the Court finds that Plaintiffs' facial challenge to the policy is not moot.

Plaintiffs' second attack upon the policy is an "as applied" challenge. This challenge focuses on how the policy will be carried out, rather than the language of the policy itself. (Id. at 2.) The essence of Plaintiffs' challenge in this regard focuses on the fact that after the policy was first adopted, "prison officials publicly declared that the warden, in reviewing the condemned's written statement, will scan it for any passage that is 'potentially offensive,' and, upon finding such a passage, will send [**11] the statement back to the prisoner with instructions to change it." (Id. at 10.)

According to Defendants, the revised version of the policy prohibits any threat of censorship and eliminates the possibility of any editing or other limitations on the content of the prisoners' last statements. (Doc. # 6 at 6.) However, after analyzing both versions of the policy, the Court concludes that neither version prohibits the editing of a prisoner's last statement.

Under both versions of the policy, a prisoner must write out his statement and submit it to the warden for transcription. However, neither version of the policy specifically states that the statement must be transcribed exactly as written by the prisoner. The only difference between the two versions lies in how the written statement is received by the witnesses to the execution, not in how it is transcribed. Under the original policy, "the statement will be read by the Warden in the execution chamber after the execution has been completed." (Id. at Ex. A-1.) However, under the revised version, "the statement will be provided to the execution witnesses and the media after the execution is completed." (Id. at Ex. A-2.) Thus, [**12] the main difference between the two versions is that under the revised version, the warden no longer has the responsibility of reading the statement after the execution. Other than this minor difference, the Court cannot see how the revised policy in any way eliminates the threat of censorship. Thus, the Court finds that the essence of Plaintiffs' claim -- that the warden may edit the content of a prisoner's written statement -- remains unchanged by the 1998 revisions to the policy. Therefore, the Court finds that Plaintiffs' claim is not moot.

Because the Court concludes that the essence of both of Plaintiffs' challenges to the policy remains unchanged by the 1998 revisions to the policy, the Court finds that Plaintiffs' claims are not moot. However, in order to ensure that Plaintiffs' Complaint sets forth accurate factual allegations, the Court GRANTS Plaintiffs leave to file an Amended Complaint. If Plaintiffs choose to file an Amended Complaint, they must do so within 30 days of the issuance of this Opinion and Order.

B. Ripeness

The doctrine of ripeness also stems from Article III's requirement of an actual case or controversy. This doctrine focuses on the timing [**13] of the action and requires that the alleged threatened injury "be certainly impending." Magaw, 132 F.3d at 280. That is, "ripeness separates those matters that are premature because the injury is speculative and may never occur from those that are appropriate for the court's review." Id. Thus, "the alleged harm must be actual or imminent, not 'conjectural' or 'hypothetical,'" Whitmore v. Arkansas, 495 U.S. 149, 155, 109 L. Ed. 2d 135, 110 S. Ct. 1717 (1990) (quoting Warth v. Seldin, 422 U.S. 490, 501, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1982)). Moreover, "allegations of possible future injury do not satisfy the requirements of Art. III." 495 U.S. at 158.

In the present case, Defendants argue that Plaintiffs' claims are not ripe for review because it is uncertain when, if ever, either of the Plaintiffs will be in a position to seek to issue their last statements. (Doc. # 6 at 8.) Defendants contend that both of these Plaintiffs are pursuing appeals of their convictions and sentences and, as a result, there is no live case or controversy before the Court. (Id.) According [*886] to Defendants, Plaintiffs will only be in a position to exercise [**14] whatever rights they may have to make a final statement if their death sentences are actually executed. (Id.)

In support of their position, Defendants rely on Whitmore v. Arkansas, 495 U.S. 149, 109 L. Ed. 2d 135, 110 S. Ct. 1717 (1990). However, the holding in Whitmore actually undermines Defendants' position. In that case, the petitioner was a death row inmate who brought suit to challenge the death sentence of another inmate, Ronald Gene Simmons. Id. at 151. The petitioner argued that a review of Simmons' sentence would be directly relevant to his own case in the event that his own death sentence were reversed and he were granted a new trial. Id. at 156. The Supreme Court rejected the petitioner's argument and found that he did not have standing to sue. Id. at 157. Specifically, the Supreme Court held that an injury that could only arise if a current death sentence is reversed is insufficient to establish jurisdiction because the likelihood of reversal is too "speculative" and "conjectural." Id.

In this case, Defendants argue that the issues presented are not ripe for review because it is uncertain [**15] whether Plaintiffs will actually be executed because their current sentences could be reversed on appeal. Thus, according to Defendants, any threat that Plaintiffs will be subjected to the execution policy in question is "speculative" and "conjectural." However, the Court finds this argument to be without merit. The Supreme Court in Whitmore refused to hear the petitioner's claim because any chance that his conviction would be reversed was too "speculative" to establish jurisdiction. In this case, however, Defendants attempt to rely on such a "speculative" scenario to divest this Court of jurisdiction. The Court rejects this position and finds it to be at odds with the holding in Whitmore.

After considering the facts and circumstances of this case, the Court finds that Plaintiffs' claims are ripe for review. In reaching this decision, the Court relies on Jones v. McAndrew, 996 F. Supp. 1439 (N.D. Fl. 1998). In that case, four death row inmates brought an action against corrections officials to challenge the electrocution procedures used in Florida. Id. at 1441. Like Defendants in this case, the defendants in Jones argued that the case [**16] was not ripe for review because even though the plaintiffs had been sentenced to death, "they [were] not yet under warrant and their executions thus [were] not yet sufficiently imminent to . . . make the claim ripe for adjudication." Id. The district court rejected the defendants' argument and found that the case was ripe for review. With respect to that finding, the district court noted, in pertinent part:


Had these plaintiffs waited until they were under death warrant before filing their claims, defendants undoubtedly would have claimed they were here too late and were engaged in an 'obvious attempt at manipulation' and 'abusive delay.' Now, however, when plaintiffs are here early enough to avoid any delay in their executions, defendants say the court should wait to address their claims until the last minute. . . . The state has adopted the specific protocols and procedures it says it will follow in all future [executions]. These are not merely proposed or transient or evolving procedures; they are, instead, final procedures the state says [it will employ]. The issues raised by this claim are as well presented now, and as susceptible to meaningful review now, [**17] as they will be on the eve of plaintiffs' executions. Plaintiffs' challenge to the constitutionality of these procedures is ripe.


Id. at 1447 (internal citations omitted).

The Court recognizes that Plaintiffs in this case, like the plaintiffs in Jones, are not under death warrant and are still pursuing appeals. However, like the procedure at issue in Jones, the execution policy at issue in this case is "not merely transient" or simply an "evolving" policy that [*887] may not actually be employed. Rather, Defendants formally adopted and revised the policy at issue in this case, and the policy is "as susceptible to meaningful review now, as [it] will be on the eve of Plaintiffs' executions." Id. at 1447. Therefore, the Court finds that this case is ripe for review. Accordingly, the Court DENIES Defendants' motion to dismiss.

IV. CONCLUSION

Upon consideration and being duly advised, the Court DENIES Defendants' motion to dismiss. Specifically, the Court finds that Plaintiffs' claims are not moot and are ripe for review. As a housekeeping issue, however, the Court GRANTS Plaintiffs leave to file an Amended Complaint [**18] in order to ensure that their factual allegations are accurate. If Plaintiffs choose to file an Amended Complaint, they must do so within 30 days of the filing of this Opinion and Order.

IT IS SO ORDERED.

Joseph P. Kinneary

UNITED STATES DISTRICT JUDGE

FRED TREESH, et al., Plaintiffs, v. BOB TAFT, et al., Defendants.



Case No. C-2-99-624



UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO, EASTERN DIVISION



122 F. Supp. 2d 887; 2000 U.S. Dist. LEXIS 19199



November 16, 2000, Filed







DISPOSITION: [**1] Defendants' second motion to dismiss GRANTED IN PART and DENIED IN PART. Count DISMISSED WITHOUT PREJUDICE.









COUNSEL: For FRED TREESH, MELVIN BONNELL, plaintiffs: Kevin Francis O'Neill, Cleveland-Marshall College of Law, Cleveland, OH.


For BOB TAFT, REGINALD WILKINSON, STEPHEN HUFFMAN, defendants: Todd Robert Marti, Ohio Attorney General, Corrections Litigation, Columbus, OH.



JUDGES: Joseph P. Kinneary, UNITED STATES DISTRICT JUDGE.



OPINIONBY: Joseph P. Kinneary



OPINION: [*888]

OPINION AND ORDER

This matter is before the Court on Defendants' second motion to dismiss. Defendants move to dismiss this case on the ground that Plaintiffs have not exhausted their administrative remedies under the Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997e(a). For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART Defendants' motion.

I. BACKGROUND

This case involves a First Amendment challenge to an Ohio prison policy that regulates the last statements of condemned prisoners. Am. Compl. at P 1. The policy, known as SOCF W-05-94, prohibits death row inmates from making a final oral statement, audible to spectators, [*889] in the moments before [**2] their executions. Id. at P 2. Rather, if a death row inmate wishes to make a last statement, he must do so in writing approximately six hours before his scheduled execution. Id. at PP 18-20. If the inmate chooses to write out a statement, the statement will be delivered to the warden and typed. Id. at Ex. A. The policy provides that the typed statement will not be distributed and read until after the inmate is executed. Id.

Plaintiffs in this case are two death row inmates who wish to make a final statement in the moments before their executions. Id. at PP 8-9. Plaintiffs name as Defendants Bob Taft, Governor of the State of Ohio; Stephen Huffman, Warden of the Southern Ohio Correctional Facility at Lucasvile, Ohio, where all Ohio executions take place; and Reginald Wilkinson, Director of the Ohio Department of Rehabilitation and Correction. Id. at PP 10-12. All Defendants are sued solely in their official capacities. Id.

Plaintiffs assert two constitutional challenges to the policy. In Count I of the Amended Complaint, Plaintiffs challenge the policy on its face. They contend that death row inmates have an affirmative constitutional right to make a last [**3] oral statement in the moments before execution. According to Plaintiffs, the policy, on its face, violates the First Amendment because it deprives death row inmates of freedom of speech and "affords condemned prisoners no opportunity to make a last oral statement, audible to spectators, after being led into the death chamber for their final minutes of life." Id. at P 2. Plaintiffs' second challenge focuses on the way the policy will be carried out. In Count II of the Amended Complaint, Plaintiffs assert that the policy violates the First Amendment because the warden "enjoys complete editorial control over the prisoner's statement, with unfettered discretion to change it, cut it, summarize it, or censor it altogether." Id. at P 3. Thus, Plaintiffs assert both a facial attack and an as-applied challenge to the policy. Plaintiffs seek declaratory and injunctive relief barring Ohio officials from enforcing the policy and requiring them to restore to condemned prisoners the opportunity "to communicate their last words as they stand on the brink of extermination." Id. at P 4.

On April 25, 2000, Defendants filed the instant motion to dismiss. (Doc. # 12.) That motion is currently [**4] before the Court for consideration.

II. ANALYSIS

Defendants contend that this case concerns "prison conditions" and must be dismissed pursuant to the PLRA because Plaintiffs failed to exhaust the administrative remedies available to them. Specifically, Defendants assert that § 5120-9-31 of the Ohio Administrative Code sets forth a procedure for the resolution of prisoner grievances. According to Defendants, Plaintiffs do not allege or attach any documentation establishing that they did in fact exhaust their administrative remedies.

In their memorandum in opposition to Defendants' motion to dismiss, Plaintiffs advance two separate reasons why this Court should not dismiss their Amended Complaint for failure to exhaust their administrative remedies. (Doc. # 13.) First, Plaintiffs contend that the PLRA only requires exhaustion in cases concerning "prison conditions." (Id. at 3). According to Plaintiffs, "the plain language of the statute, the prevailing judicial interpretation of the term 'prison conditions,' and the legislative history of the PLRA, make it clear that this is not a 'prison conditions' case" and exhaustion is not required. (Id.) In the alternative, Plaintiffs [**5] argue that "even if this is a prison conditions case, there is no available administrative remedy for Plaintiffs to exhaust their claims." (Id.)

In resolving the instant motion to dismiss, the Court will first examine the PLRA as well as the relevant case law interpreting its provisions in order to determine whether the instant dispute is a [*890] case involving prison conditions. The Court will then examine Plaintiffs' argument that there are no administrative remedies available to them.

A. The PLRA

Congress enacted the PLRA "to reduce frivolous prisoner lawsuits and to reduce the intervention of federal courts into the management of the nation's prison systems." Freeman v. Francis, 196 F.3d 641, 643 (6th Cir. 1999). In order to accomplish this goal, the PLRA requires prisoners to first exhaust any administrative remedies available to them before filing suit in federal court with respect to "prison conditions." Id. at 644. Specifically, the PLRA provides, in pertinent part, that "no action shall be brought with respect to prison conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative [**6] remedies as are available are exhausted." 42 U.S.C. § 1997e(a).

Under § 1997e(a), exhaustion is "a precondition to filing an action in federal court" and a prisoner "may not exhaust administrative remedies during the pendency of the federal suit." Freeman, 196 F.3d at 645. If a prisoner has not satisfied this precondition, "district courts should enforce the exhaustion requirement sua sponte if not raised by the defendant" and refrain from "prematurely deciding the merits of any such action." Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998). If a prisoner has satisfied the exhaustion requirement, he "should attach to his [] complaint the administrative decision, if it is available, showing the administrative disposition of his complaint." Id.

In order to determine whether a case is subject to the exhaustion requirement set forth in § 1997e(a) of the PLRA, a court must determine whether the case challenges "prison conditions." In Freeman v. Francis, 196 F.3d 641 (6th Cir. 1999), the Sixth Circuit examined the definition of "prison conditions." The Sixth Circuit began its analysis with the plain [**7] language of the statute, noting that although Congress did not define "prison conditions" in § 1997e(a), that phrase is defined in 18 U.S.C. § 3626(g)(2), another section of the PLRA. See Freeman, 196 F.3d at 643. The Sixth Circuit then looked to the plain language of § 3626(g)(2) for the definition of prison conditions because "it is generally recognized that when Congress uses the same language in two different places in the same statute, the words are usually read to mean the same thing in both places." Id.

Section 3626(g)(2) defines "prison conditions" as follows:


the term 'civil action with respect to prison conditions' means any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison.


18 U.S.C. § 3626(g)(2). Thus, under this provision, "prison conditions" is defined in two separate ways. First, a civil action involves prison conditions if the action challenges the [**8] "conditions of confinement." Id. Second, a case involves prison conditions if it challenges the "effects of actions by government officials on the lives of persons confined in prison." Id.

1. Application to the Instant Matter

Plaintiffs argue that the instant action does not meet either of the definitions of prison conditions set forth in § 3626(g)(2). According to Plaintiffs, their First Amendment rights will not be violated until after they have been executed. They contend that because their rights will not be violated until after their death, this case does not concern "conditions of confinement" or the "effects" of government officials on their "lives." (Doc. # 13 at 5.)

However, upon careful review of the pleadings in this case, the Court finds that Plaintiffs are actually challenging actions that will occur both before and after they [*891] are executed. Specifically, in Count I of the Amended Complaint, Plaintiffs are challenging the fact that they will not be permitted to actually make a last oral statement prior to their executions. This claim clearly challenges the "effects" of "actions" that will occur prior to the time when Plaintiffs will actually be executed. [**9] Because the alleged deprivation of Plaintiffs' First Amendment rights will occur prior to their executions, the Court finds that Count I of the Amended Complaint satisfies the definition of "prison conditions" set forth in the PLRA.

With respect to Count II of the Amended Complaint, the Court finds that Plaintiffs are also challenging actions that will occur after they are executed. That is, in Count II, Plaintiffs allege that the warden enjoys "unfettered discretion" to change, cut, summarize or censor their written statements after they are executed. Because any possible editing will occur after the Plaintiffs are executed, Count II does not meet the definition of "prison conditions" and is not subject to the PLRA's exhaustion requirement. Stated differently, the PLRA is inapplicable to Count II because at the time that the alleged deprivation will occur, Plaintiffs will no longer be "prisoners" who are "confined" and any possible editing will not affect their "lives." Accordingly, the Court DENIES Defendants' motion to dismiss with respect to Count II of the Amended Complaint.

2. The Legislative History of the PLRA

Plaintiffs argue that even if their claims satisfy [**10] the definition of "prison conditions" set forth in § 3636(g)(2), requiring exhaustion in this case would be inconsistent with the legislative history of the PLRA. In particular, Plaintiffs appear to allege that Congress enacted the PLRA solely to reduce the number of frivolous lawsuits filed in federal court and because this case is not frivolous, the exhaustion requirement should not apply. The Court finds this argument to be without merit for two reasons.

First, this Court need not look to the legislative history of the PLRA because the language of the statute is clear and unambiguous. Where, as here, the language of a statute is unambiguous, that language is controlling and "judicial inquiry is complete, except in 'rare and exceptional circumstances.'" Garcia v. U.S., 469 U.S. 70, 75, 83 L. Ed. 2d 472, 105 S. Ct. 479 (1984) (quoting Tennessee Valley Authority v. Hill, 437 U.S. 153, 187 n.33, 57 L. Ed. 2d 117, 98 S. Ct. 2279 (1978)). Thus, courts seek guidance from the legislative history only when the language of the statute is ambiguous or a literal reading of the statute would produce an absurd result. See Garcia, 469 U.S. at 75 [**11] (Rehnquist, J.) ("Only the most extraordinary showing of contrary intentions from [the legislative history] would justify a limitation on the 'plain meaning' of the statutory language.").

In this case, the plain language of the statute does not limit the application of the exhaustion requirement to frivolous cases. To the contrary, the PLRA's exhaustion requirement is expressly inapplicable to frivolous cases. In § 1997e(c), Congress created an express exception to the exhaustion requirement for cases that appear frivolous on their face. Specifically, § 1997e(c)(2) provides as follows:


(c) Dismissal

(2) In the event that a claim is, on its face, frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief, the court may dismiss the underlying claim without first requiring the exhaustion of administrative remedies.


42 U.S.C. § 1997e(c). Thus, Plaintiffs' argument that only frivolous cases are subject to the PLRA is without merit because the plain language of the PLRA specifically excludes frivolous cases from the exhaustion requirement. [*892]

However, [**12] even if this Court were to seek guidance from the legislative history, the Court would still conclude that Count I should be dismissed for failure to exhaust administrative remedies. As Plaintiffs correctly note, the desire to reduce frivolous lawsuits was a motivating factor behind the enactment of the PLRA. However, that desire was not the only motivation behind the statute. As the Sixth Circuit noted in Freeman, the desire to "reduce the intervention of federal courts into the management of the nation's prison systems" is an additional, and equally important, purpose underlying the PLRA. Freeman, 196 F.3d at 643. Thus, the legislative history supports the position that exhaustion is required in all cases so that prison officials may attempt to resolve the concerns of prisoners before being hailed into federal court. Therefore, requiring exhaustion in this case will actually further the legislative intent behind the statute because it will allow prison officials to respond to Plaintiffs' complaints about the policy in question before being required to defend the policy in this Court.

B. Availability of Administrative Remedies

Having determined that Count [**13] I of the Amended Complaint is subject to the exhaustion requirement of § 1997e, the Court must now determine whether there are any "available" administrative remedies for Plaintiffs to exhaust. Plaintiffs contend that there are not. According to Plaintiffs, the administrative procedures available to them preclude the opportunity for meaningful review and therefore, the exhaustion requirement should be excused in this case. In order to better understand Plaintiffs' argument, the Court will now examine the relevant provisions of the Ohio Administrative Code.

Section 5120-9-31 of the Ohio Administrative Code outlines the inmate grievance procedure used in the state of Ohio. Subsection (B) of § 5120-9-31 provides that the grievance procedure may be used by any inmate, regardless of his security or disciplinary status, to raise concerns about "departmental or local institutional policies, procedures, rules and regulations or the application of any of these to the grievant." Ohio Admin. Code § 5120-9-31(B). Under the grievance procedure, the Chief Inspector is responsible for reviewing and disposing of all grievances "directed against a managing officer or inspector of institutional [**14] services." Ohio Admin. Code § 5120-9-30(G). Thus, the Chief Investigator would be the investigating officer in this case.

In addition, § 5120-9-30(D)(13) charges the Chief Inspector with the duty of reviewing every proposed addition to or revision of the administrative rules of the Department of Corrections. The Chief Inspector must review the proposed additions or revisions and "indicate in writing to the director whether in his opinion the proposed rule would be a potential source of grievances; and if so, shall propose such amendments as are warranted." Id. § 5120-9-30(D)(13). However, the authority of the Chief Inspector to review proposed changes "shall not preclude the issuance of administrative rules by the director contrary to the opinion of the chief inspector." Id.

Against this backdrop, Plaintiffs urge the Court to conclude that the administrative remedies available to them preclude the opportunity for meaningful review. In support of their position, Plaintiffs first contend that the Chief Inspector will conduct a biased review of their grievance because under § 5120-9-30(D)(13), he has already approved the policy in question. Second, Plaintiffs argue that [**15] even if the Chief Inspector conducts an unbiased review, exhaustion would be futile because under § 5120-9-30(D)(2), the Chief Inspector only has authority to make recommendations as to how a particular grievance should be resolved and the director is free to reject his recommendations. The Court will address each of Plaintiffs' arguments in turn. [*893]

1. Section 5120-9-30(D)(13)

As stated in the previous section of this Opinion and Order, the Chief Inspector is responsible for reviewing proposed changes to administrative rules and he must make a recommendation to the director as to whether the proposed rule would be a potential source of grievances. See Oh. Admin. Code § 5120-9-30(D)(13). According to Plaintiffs, because the Chief Inspector must review all proposed changes, the policy at issue in this case "has already been reviewed and approved by the same person who would investigate [their] grievances" and "as such, there is no administrative remedy for [them] to pursue." (Doc. # 13 at 11.) The Court finds this argument to be without merit for two reasons.

First, Plaintiffs overlook the fact that § 5120-9-30(D)(13) only authorizes the Chief Inspector to review proposed [**16] revisions or additions to administrative rules, not institutional policies such as the one challenged in this case. Because the policy at issue is not an administrative rule, the Chief Inspector is not authorized to review it under subsection (D)(13). Accordingly, the threat of bias is not present in this case, as there is no evidence that the Chief Inspector has ever reviewed the policy in question.

Second, even if the Chief Inspector has reviewed the policy challenged in this action, there is no evidence to suggest that his subsequent review would be biased. The fact that the Chief Inspector has reviewed an administrative rule does not mean that he is precluded from resolving a grievance with respect to the application of that rule in favor of an inmate. When the Inspector reviews a proposed revision or addition to an administrative rule under subsection (D)(13), the Inspector reviews that rule in a vacuum -- he must review the rule solely to determine whether it will likely generate grievances. On the other hand, when the Inspector reviews an individual inmate grievance, he is reviewing the application of a particular rule in the context of an actual complaint in a concrete factual [**17] setting. This review is quite distinct from that contemplated by § 5120-9-30(D)(13). Accordingly, the Court finds that § 5120-9-30(D)(13) does not render the inmate grievance procedure meaningless.

2. Section 5120-9-30(D)(2)

In their second challenge to the grievance procedure, Plaintiffs contend that under § 5120-9-30(D)(2), the Inspector lacks final authority to resolve inmate grievances. Specifically, Plaintiffs challenge the fact that the Inspector only has the authority to make recommendations with respect to how a particular grievance should be resolved. Plaintiffs contend that because the Inspector only has authority to make recommendations, the director is free to "reject any opinion, advice, or recommendation of the Chief Inspector." (Doc. # 13 at 11.) According to Plaintiffs, "providing inmates with a grievance procedure that lacks authority to resolve the grievance or enact rule changes provides the inmates with no avenue to seek administrative relief." (Id. at 12.) The Court also finds this argument to be without merit.

Plaintiffs are essentially waging a facial attack against the inmate grievance procedure. However, in Freeman, the Sixth Circuit found [**18] this same procedure to be an adequate administrative remedy for purposes of exhaustion under the PLRA. See 196 F.3d at 645 n.4 (explaining Ohio's inmate grievance procedure and dismissing the plaintiff's complaint for failing to complete it). Because the Sixth Circuit has found the grievance procedure at issue in this case to be an "available" administrative remedy, the Court finds Plaintiffs' argument to be without merit. Plaintiffs must exhaust the inmate grievance procedure before bringing their claim contained in Count I of the Amended Complaint in this Court. Accordingly, the Court DISMISSES that count WITHOUT PREJUDICE. [*894]

IV. CONCLUSION

Upon consideration and being duly advised, the Court GRANTS IN PART and DENIES IN PART Defendants' second motion to dismiss. In particular, the Court GRANTS Defendants' motion with respect to Count I of the Amended Complaint and the Court DISMISSES that count WITHOUT PREJUDICE. With respect to Count II of the Amended Complaint, the Court DENIES Defendants' motion. Count II is not subject to the exhaustion requirement of the PLRA.

IT IS SO ORDERED.

Joseph P. Kinneary

UNITED [**19] STATES DISTRICT JUDGE