Elliott v. Layman

Full title: OMER JACKSON ELLIOTT, PRO SE, Plaintiff, v. CO III DAVID M. LAYMAN…

Court: United States District Court, N.D. Texas, Amarillo Division

Date published: Aug 20, 2004

2:03-CV-0096 (N.D. Tex. Aug. 20, 2004)

Opinion

2:03-CV-0096.

August 20, 2004

MEMORANDUM OPINION AND ORDER OF DISMISSAL

MARY ROBINSON, District Judge

Plaintiff OMER JACKSON ELLIOTT, acting pro se and while incarcerated in the Texas Department of Criminal Justice, Institutional Division, filed this suit pursuant to Title 42, United States Code, section 1983 complaining against the above-named defendant and has been granted permission to proceed in forma pauperis.

Plaintiff claims that, on December 9^th, the defendant closed plaintiff's fingers in the food tray slot, breaking one of them. Plaintiff states his finger "is still defected from the injury."

JUDICIAL REVIEW

When a prisoner confined in any jail, prison, or other correctional facility brings an action with respect to prison conditions under any federal law, the Court may evaluate the complaint and dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous,¹ 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. 42 U.S.C. 1997e(c)(1). A Spears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n. 4 (5th Cir. 1991).²

1 A claim is frivolous if it lacks an arguable basis in law or in fact, Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993); see, Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).

2 Cf, Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson questionnaire.").

The District Judge has reviewed plaintiff's pleadings and has viewed the facts alleged by plaintiff in his complaint to determine if his claim presents grounds for dismissal or should proceed to answer by defendant.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

The Civil Rights of Institutionalized Persons Act, Title 42, United States Code, section 1997e(a), provides that "[n]o action shall be brought with respect to prison conditions under [Title 42, United States Code, section 1983,] 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." 42 U.S.C. § 1997e(a).

On his original complaint, plaintiff responded to Question no. III of the complaint form by marking both the space for "Yes" and the space for "No." Plaintiff added the notation "Grievance #2003080107 12." Plaintiff attached Step 1 and Step 2 Grievance #2003080107, showing the substance of his complaint to prison officials and the response he received.

On May 15, 2003, plaintiff filed a letter/pleading by which he submitted Step 1 and Step 2 Grievance #2003064400, saying this they concerned his claim in this suit. Consequently, the Court has reviewed both Grievance #2003080107 and Grievance #2003064400.

Review of Grievance #2003080107 reveals that it is not a grievance about the December 9^th incident, but concerns an incident that occurred January 5, 2003, when, plaintiff complains, defendant Layman refused breakfast to plaintiff and his cellmate and harassed plaintiff about his broken finger.

Review of Grievance #2003064400 reveals both Step 1 and Step 2 complain of the December 9, 2002 incident underlying the present suit; however, the Step 2 grievance is dated April 3, 2003; was screened and returned unanswered because the grievable time period had expired; and contains a statement by plaintiff referencing an earlier, unresolved, Step 2 grievance #2003064400. This circumstance triggered the Court's July 30, 2003 Briefing Order Questionnaire question no. 3, inquiring on what date the plaintiff first submitted the step 2 grievance #2003064400.

Plaintiff's August 14, 2003, response was that he first submitted his step 2 grievance #2003064400 on April 3, 2003. Plaintiff's response conflicts with the reference in that grievance concerning an earlier, unprocessed grievance. Nevertheless, the Court has asked plaintiff to provide the relevant facts and will now take those facts as alleged by plaintiff in order to analyze his claims. "A prisoner's administrative remedies are deemed exhausted when a valid grievance has been filed and the state's time for responding thereto has expired." Powe v. Ennis, 177 F.3d 393, 394 (5^th Cir. 1999). "[A]n untimely grievance in and of itself . . . [does not] render the grievance system unavailable, thus excusing the exhaustion requirement. Such a holding would allow inmates to file suit in federal court despite intentionally evading the PLRA's exhaustion requirement by failing to comply with the prison grievance system." Days v. Johnson, 322 F.3d 863, 867 (5^th Cir. 2003). It appears plaintiff did not exhaust administrative remedies by properly submitting a timely step 2 grievance concerning the underlying events. Plaintiff's untimely submission of his step 2 grievance was not sufficient to exhaust administrative remedies.

By choosing to file and pursue suit before meeting the section 1997e exhaustion of administrative remedies requirement, plaintiff has sought relief to which he was not entitled. Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998). Consequently, plaintiff's claims lack an arguable basis in law and are frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).

CONCLUSION

The claims asserted in this cause are barred by plaintiff's failure to comply with the section 1997e exhaustion of administrative remedies requirement before filing the instant suit challenging prison conditions. Further, because they presently lack an arguable basis in law, they are frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).

IT IS HEREBY ORDERED:

The referral of the instant cause to the United States Magistrate Judge is hereby withdrawn.

This Civil Rights Complaint is DISMISSED AS FRIVOLOUS AND WITH PREJUDICE FOR PURPOSES OF PROCEEDING IN AN IN FORMA PAUPERIS PROCEEDING PURSUANT TO TITLE 28, UNITED STATES CODE, SECTION 1915(b). Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998); 42 U.S.C. § 1997e(a).

LET JUDGMENT BE ENTERED ACCORDINGLY.

All pending motions are DENIED.

The Clerk will mail a copy of this Order to the plaintiff, and to any attorney of record by first class mail. The Clerk will also mail a copy to TDCJ-Office of the General Counsel, P.O. Box 13084, Capitol Station, Austin, TX 78711 and to the Pro Se Clerk at the U.S. District Court for the Eastern District of Texas, Tyler Division.

IT IS SO ORDERED.