Opinion
3-02-CV-455-L
November 15, 2002
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to the order of the District Court filed on November 14, 2002, and the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) came on to be considered the Federal Defendants' Motion to Dismiss filed on August 5, 2002, and the magistrate judge finds and recommends as follows:
FINDINGS AND CONCLUSIONS:
In their motion to dismiss Defendants Dr. J. Capps and Correctional Officer Williams assert that Plaintiff failed to exhaust administrative remedies. Separately Defendant Williams seeks dismissal pursuant to Rule 4(m) alleging that service of process has not been timely effected. 42 U.S.C. § 1997e(a) provides in pertinent part that
"no action shall be brought with respect to prison conditions under § 1983 . . . by a prisoner confined in any jail, prison, or other corrections facility until such administrative remedies as are available are exhausted." (Emphasis added).
In their motion Defendants identify the Code of Federal Regulations provisions which set out the procedures which a federal inmate must pursue in exhausting administrative remedies.
It is pertinent to disposition of the present motion to note that it is predicated on Rule 12 rather than pursuant to Rule 56. As such the court must accept as true the representations in Anderson's pleadings. In his complaint filed on March 4, 2002, at page 1, he specifically states that he has exhausted all of his administrative remedies. Therefore, Defendant's motion must be denied insofar as it is predicated on a failure to exhaust administrative remedies. See Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir. 1998).
With respect to Defendant Williams, whom Plaintiff has identified only as a correctional officer at Seagoville, F.C.I., it appears that although the court directed process to be served by the United States Marshal, after having granted Plaintiff leave to proceed in forma pauperis, that process on Correctional Officer Williams was unsuccessful and returned unexecuted on June 4, 2002, with the notation that this defendant could not be identified because of the fact that there were several employees at Seagoville, F.C.I., with the surname Williams. Under such circumstances additional time should be granted to permit Anderson to obtain more specific information to provide to the court with respect to the identity of Correctional Officer Williams.
RECOMMENDATION:
For the foregoing reasons it is recommended that Defendants' Rule 12 motion to dismiss be denied.
It is further recommended that Defendant Correctional Officer Williams' motion to dismiss for lack of service be denied.
It is further recommended that the District Court order Plaintiff Anderson to provide sufficient information with respect to the identity of Correctional Officer Williams, e.g. first and middle names and badge number or age, race, sex and physical description and/or until to which Williams was assigned on the date on which Plaintiff slipped and fell, within sixty (60) days of the date of the District Court's order so that process may be effected.
A copy of this recommendation shall be transmitted to Plaintiff and counsel for Defendants.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.