Opinion
Civil Action No. 1:05cv810.
February 7, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Jonny Bazile, Jr., an inmate confined in the Federal Correctional Complex at Beaumont, Texas, proceeding pro se, brings this Bivens-type action against Harvey Lappin, Tyrone Silver, T.C. Outlaw, Rios, Martin, Yolanda LaFlore, Wilson, and other unidentified defendants. Plaintiff alleges that the defendants ignored a mandatory evacuation order and left him at the prison in Beaumont during a hurricane.
See Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
The above-styled action was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636 and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to the United States Magistrate Judge for findings of fact, conclusions of law, and recommendations for the disposition of the case.
Analysis
Exhaustion of Administrative Remedies
Title 42 U.S.C. § 1997e(a) requires prisoners to exhaust administrative remedies before filing a lawsuit concerning prison conditions. The statute provides in pertinent part the following: "No action shall be brought with respect to prison conditions under section 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." 42 U.S.C. § 1997e(a).
Exhaustion of administrative remedies 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 (2002). The exhaustion requirement applies to all inmate suits concerning prison life, whether they involve general circumstances or particular episodes. Id. at 532. In addition, administrative remedies must be exhausted regardless of the type of relief which is sought in the lawsuit. Booth v. Churner, 532 U.S. 731 (2001).
The Federal Bureau of Prisons, which administers the prison in which plaintiff is incarcerated, has a four-step process for resolving complaints by prisoners. Initially, a prisoner must attempt to informally resolve the complaint with staff. 28 C.F.R. § 542.13(a). If informal attempts are unsuccessful, the prisoner must submit a Request for Administrative Remedy to the Warden. 28 C.F.R. § 542.14. If the prisoner is not satisfied with the warden's response, he may appeal to the Regional Director. 28 C.F.R. 542.15. If still unsatisfied, the prisoner may appeal to the Office of General Counsel. Id.
Plaintiff has neither alleged nor demonstrated that he exhausted the available administrative remedies before filing this action. Accordingly, the claims should be dismissed without prejudice to allow plaintiff to fully exhaust available administrative remedies, as required by 42 U.S.C. § 1997e(a).
Recommendation
Plaintiff's complaint should be dismissed for failing to exhaust available administrative remedies.
Objections
Within ten (10) days after being served with a copy of the magistrate judge's report, any party may serve and file written objections to the findings of facts, conclusions of law and recommendations of the magistrate judge. 28 U.S.C. § 636 (b)(1)(C).
Failure to file written objections to the proposed findings of facts, conclusions of law and recommendations contained within this report within ten days after service shall bar an aggrieved party from de novo review by the district court of the proposed findings, conclusions and recommendations and from appellate review of factual findings and legal conclusions accepted by the district court except on grounds of plain error. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72.