The plaintiff, an incarcerated individual, sought a declaratory judgment
and punitive damages against the defendant B, an employee of the
Department of Correction, claiming that B had retaliated against him
for filing a grievance against her for allegedly denying him access to
type legal documents on the facility’s typewriter, which he claimed was
a denial of access to the courts in violation of the federal constitution.
In B’s answer, she asserted the special defense of failure to exhaust
administrative remedies, pursuant to federal statute (§ 42 U.S.C. § 1997e
(a)). At B’s request, the trial court held an evidentiary hearing, prior to
the start of trial, regarding B’s defense of failure to exhaust. The trial
court granted B’s motion to dismiss, concluding that because the plaintiff
had failed to exhaust his administrative remedies under the department’s
grievance system, it lacked subject matter jurisdiction pursuant to § 42
U.S.C. § 1997e (a). On the plaintiff’s appeal to this court, held:
1. This court declined to review the plaintiff’s unpreserved claim that the
trial court erred in determining that he had failed to exhaust his adminis-
trative remedies by not filing a second grievance regarding B’s alleged
retaliatory conduct pursuant to the department’s grievance procedure,
as this claim was not raised before the trial court: moreover, this court
declined the plaintiff’s request to review his unpreserved claim under
the plain error doctrine, as the plaintiff failed to demonstrate that there
was an error so clear and obvious as to warrant the extraordinary
remedy of reversal, and beyond the plaintiff’s unsupported assertions
that the circumstances of his case were extraordinary because the trial
court and B overlooked controlling case law, the plaintiff provided little
to no analysis of this unpreserved claim under the plain error doctrine.
2. The plaintiff could not prevail on his claim that the trial court erred in
considering B’s special defense that the plaintiff had failed to exhaust
his administrative remedies because B had waived that special defense
by failing to raise it in her pretrial motions to dismiss and her motion
for a summary judgment; contrary to the plaintiff’s claim, B, under the
relevant rule of practice (§ 10-60) was not required to raise her special
defenses in her pretrial motions to dismiss, and, because exhaustion
under § 42 U.S.C. § 1997e (a) was an affirmative defense, the plaintiff
was not required to factually plead in his complaint that he had exhausted
his administrative remedies, and, thus, it was not until the plaintiff
provided B with a list of the exhibits three days before trial was it
confirmed that the plaintiff had not exhausted his administrative reme-
dies for his retaliation claim.
Argued April 14—officially released September 7, 2021 Procedural History