Opinion
CIVIL ACTION NO. 1:18-CV-214
07-17-2018
LAVELL BONE, Plaintiff, v. LIEUTENANT WARNER, Defendant.
MEMORANDUM ORDER OVERRULING PLAINTIFF'S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Plaintiff Lavell Bone, an inmate formerly confined at the Federal Correctional Complex in Beaumont, Texas, proceeding pro se, brought this lawsuit against Lieutenant Warner, alleging a violation of the Eighth Amendment.
The court referred this matter to the Honorable Keith F. Giblin, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court. The Magistrate Judge recommends this action be dismissed for failing to state a claim upon which relief may be granted.
The court has received and considered the Report and Recommendation of United States Magistrate Judge filed pursuant to such referral, along with the record, pleadings and all available evidence. Plaintiff filed objections to the magistrate judge's Report and Recommendation. This requires a de novo review of the objections in relation to the pleadings and the applicable law. See FED. R. CIV. P. 72(b). After careful consideration, the court concludes Plaintiff's objections are without merit.
Exhaustion of administrative remedies prior to filing suit is mandatory and is intended to give correctional officials an opportunity to address complaints internally before initiation of a federal suit. See Porter v. Nussle, 534 U.S. 516, 525, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Further, the Supreme Court has explained that prisoners must exhaust available administrative remedies in accordance with all procedural rules, including deadlines, as a precondition to bringing suit in federal court. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2382, 2387, 165 L.Ed.2d 368 (2006). The Fifth Circuit has made clear that administrative remedies must be exhausted prior to filing a lawsuit rather than while the action is pending, and district courts have no discretion to waive the PLRA's pre-filing exhaustion requirement. See Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012).
Here, Plaintiff admits he did not exhaust available administrative remedies prior to filing this action. In his objections, Plaintiff seeks an additional ninety days in which to exhaust his remedies, explaining he is in the second step of the proceedings at this time. However, this Court has no discretion to waive the PLRA's pre-filing exhaustion requirement. Therefore, Plaintiff's objections are without merit and the action must be dismissed.
ORDER
Accordingly, Plaintiff's objections are OVERRULED. The findings of fact and conclusions of law of the magistrate judge are correct, and the report of the magistrate judge is ADOPTED. A final judgment will be entered in this case in accordance with the magistrate judge's recommendation.
SIGNED at Beaumont, Texas, this 17th day of July, 2018.
/s/_________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE