Opinion
No. 2:03-CV-0387.
April 23, 2004
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff DERRICK BERNARD, 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 complains that, on September 5, 2003, while investigating a case against plaintiff for masturbation, engaged in sexual harassment of plaintiff by ordering him to strip and then engaging in sexually explicit verbal abuse.
Plaintiff requests "damages for violation of rights, compensatory and nominal damages, and injunctive relief from further harm."
JUDICIAL REVIEW
When a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, the Court must 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, 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. 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e)(2). The same standards will support dismissal of a suit brought under any federal law by a prisoner confined in any jail, prison, or other correctional facility, where such suit concerns prison conditions. 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).
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).
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 defendants.
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). "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 (5th Cir. 1999).
On his complaint, plaintiff indicated he had exhausted administrative remedies and attached a copy of the grievance at both step 1 and step 2; however, review of this grievance reveals plaintiff did not submit it in a timely manner, and it was rejected by prison officials for that reason. Plaintiff's step 1 grievance is marked received on September 22, 2003, and was returned to plaintiff unprocessed because of its untimely nature. Further, plaintiff's step 2 grievance was returned because the underlying step 1 grievance was rejected. Plaintiff has made no reference of any sort to the processing of his grievance.
The untimely nature of the grievance does not alter the exhaustion requirement. "[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 (5th Cir. 2003).
Thus, it appears plaintiff failed to exhaust administrative remedies before filing suit in federal court. 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, these 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).
Because dismissal may serve as a deterrent to future premature filings by this plaintiff and other potential litigants, the Civil Rights Complaint filed pursuant to Title 42, United States Code, section 1983, by plaintiff DERRICK BERNARD is hereby 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).
IT IS SO ORDERED.