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McGowan v. Gibson11/17/2000
lude that the plaintiff's claim was not time-barred because it was filed within the applicable one year statute of limitations.
Our conclusion is further buttressed by the fact that Congress has enacted 42 U.S.C. §1997e, which provides that an action cannot be brought by a prisoner regarding prison conditions under §1983 until any available administrative remedies are exhausted. 42 U.S.C. §1997e(a) . If a prisoner fails to exhaust his administrative remedies, his complaint will be dismissed. Brown v. Toombs, 139 F.3d 1102 (6th Cir. 1998). Accordingly, prisoners have no choice but to file a grievance and exhaust such administrative remedy pursuant to 42 U.S.C. §1997e, but in this State, filing a grievance regarding their claim automatically renders it subject to Tenn. Code Ann. §41-21-806 and its abbreviated time period. The statute, therefore, unfairly discriminates against §1983 actions, since any such action will be subject to the thirty day limitation, and can reduce the one year granted to all plaintiffs, as did occur in this case.
Next, defendants argue that plaintiff cannot maintain his claims because they imply that his disciplinary convictions for creating a disturbance, disrespect, and threatening an employee were invalid, when these convictions have not been reversed or otherwise declared invalid, pursuant to Edwards v. Balisok, 520 U.S. 641 (1997) and Heck v. Humphrey, 512 U.S. 477 (1994). Edwards and Heck, however, stand for the proposition that a prisoner cannot seek relief under §1983 for violations related to the disciplinary conviction without said conviction having been reversed or invalidated. In this case, plaintiff's allegations regarding excessive force do not necessarily imply the invalidity of his disciplinary conviction, i.e., plaintiff may have been disrespectful, threatening, etc., either before, during, or after he was allegedly unlawfully assaulted by the prison guard. Moreover, plaintiff's claims that he was disciplined in retaliation for filing a grievance which does not seek to invalidate his disciplinary conviction, but merely to question the animus for defendants' pursuit of same. See Burgess v. Moore, 39 F.3d 216 (8th Cir. 1994). Since plaintiff's Complaint does not seek to have his disciplinary conviction expressly or impliedly declared invalid, his claims are not barred pursuant to Edwards and Heck. We find defendants' argument on this issue without merit.
Plaintiff also argues that it was improper for the Trial Court to grant defendants' Motion for Summary Judgment without giving plaintiff the right to appear and argue his position. It appears that plaintiff's motion was never acted upon by the Trial Court. However, in view of our ruling on appeal, it is unnecessary to address this issue, except to say the rule in this regard which has developed, is that a trial judge has discretion to decide whether or not to order a prisoner's appearance based upon a balancing test which considers the best interests of the prisoner and the government, as well as the "substantiality of the matter at issue." Knight v. Knight, 11 S.W.3d 898 (Tenn. Ct. App. 1999).
For all the foregoing reasons, we vacate the summary judgment in this case, and remand for further proceedings consistent with this Opinion. The cost of the appeal is assessed to the appellees. Robert Gibson, Gail Williams, Joey Texiera, and Darren Settles.
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