Opinion
CIVIL ACTION NO. 01-2762.
April 24, 2002
MINUTE ENTRY
Before this Court are plaintiffs objections to the Magistrate's Report and Recommendation issued on February 28, 2002 in the above-captioned matter. Plaintiff instituted this suit on September 13, 2001 and a Spears hearing was conducted on October 2, 2001. Defendant filed a Motion for Summary Judgment on October 31, 2001. In her report, Magistrate Judge Roby recommended that plaintiffs complaint be dismissed without prejudice for failure to exhaust administrative remedies and defendant's Motion for Summary Judgment was denied as moot on March 28, 2001.
Plaintiff is currently serving a 30-month term in the Orleans Parish Prison System ("OPP"). In his complaint, plaintiff alleged that certain conditions at his jail violated his rights under § 1983. Specifically, plaintiff listed the following complaints: deprivation of educational opportunities, inadequate recreation, unsanitary food services, deprivation of clothing, cell overcrowding, failure provide clothing, prohibiting religious practices, inadequate law library, ineffective legal assistance, denial of drug treatment for his cocaine abuse, and failure to provide proper medical care.
In order for a prisoner to challenge prison conditions or personal grievances in federal court, he/she must first exhaust all administrative remedies provided by the prison system without regard for the type of relief he is seeking or the type of relief available under the prison's grievance system. Booth v. Churner, 121 S.Ct. 1819 (2001). Specifically, Prison Litigation Reform Act of 1996 ("PLRA") § 1977(e) provides that
No action shall be brought with respect to prison conditions under § 1983 of this title, 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.
Title 42 U.S.C. § 1997 (e)(a)
The prison grievance procedure consists of three steps. In Step One, an inmate must complete an Inmate Grievance From. The Warden then receives the Form and determines whether the complaint is "grievable" or a "request for service." If the complaint is grievable, it is assigned to the appropriate respondent for a response that will be given to the inmate within 15 days from the date the grievance is given to the respondent. If the inmate is dissatisfied with the response from Step One, he/she must complete the Step Two Form and within twenty five days after the Warden receives the Step Two Form, he must assure that the inmate receives a response. If the inmate remains dissatisfied with the response from Step Two, he/she must complete Step Three and appeal to the Sheriff. Within thirty days after the inmate submits the Step Three Form, a final decision must be made by the Sheriff or the person chosen by him to address the complaint.
In the case at bar, plaintiff has filed a myriad of grievance forms reflecting his dissatisfaction with conditions at OPP including: (1) inadequate medical care because he has been refused Interferon shots for his Hepatitis C, (2) failure to properly clothe inmates because he has not received T-shirts, socks and boxers, and (3) inadequate law library because it does not contain any F.2d or F. Supp. books.
After reviewing plaintiffs claim, Judge Roby dismissed plaintiffs complaint because he had not exhausted his administrative remedies as to any of his complaints. Specifically, the Report and Recommendation noted that "[t]he only grievance which Fortney attempted to seek review of in the initial determination was the complaint regarding his request for Interferon. However, he did not seek third level review." Report and Recommendation, p. 6.
While not a part of the record at the time the magistrate's report was issued, plaintiff attached documents to his Objections evidencing that he had satisfied the third step of the administrative procedure in reference to his claim for "proper medical attention." The documents indicate that plaintiff satisfied Step Three on October 3, 2001. The attachments also evidence that defendant responded to plaintiffs Step Three Form on November 15, 2001 and explained that plaintiff would receive Interferon "if medically indicated." Neither plaintiffs Step Three Form nor defendant's response was attached to defendant's Motion for Summary Judgment requesting dismissal of plaintiffs complaints for failure to exhaust administrative remedies.
Accordingly,
IT IS ORDERED that plaintiffs § 1983 claim against defendant, Charles C. Foti, Jr., for inadequate medical care be REMANDED to the Magistrate Judge for further consideration in light of the new evidence attached by plaintiff to his Objections to the Report and Recommendation.
IT IS FURTHER ORDERED that all remaining claims asserted by plaintiff against defendant be DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies.