Opinion
CASE NO. 02-CV-73050-DT
January 17, 2003
OPINION AND ORDER GRANTING DEFENDANT SEVIN N. AYDAR'S MOTION TO DISMISS
Plaintiff filed this action on August 5, 2002, pursuant to 42 U.S.C. § 1983 and 1985, alleging violations of his constitutional rights. Pretrial proceedings in this case were referred to Magistrate Judge Steven D. Pepe. On September 11, 2002, Defendant Sevin N. Aydar (Aydar) filed a motion to dismiss Plaintiff's claims against him for Plaintiff's failure to exhaust his administrative remedies. On October 22, 2002, Magistrate Judge Pepe filed his Report and Recommendation (RR) recommending Plaintiff's claims against Defendant Aydar be dismissed. On November 11, 2002, Plaintiff filed his objection to the RR. Defendant Aydar filed a Response to Plaintiff's objection on November 12, 2002. For the reasons set forth below, the Court concurs in the RR and shall dismiss Plaintiff's claims against Defendant Aydar.
STANDARD OF REVIEW
The parts of the RR to which Plaintiff objects will be reviewed by the Court de novo. Thomas v. Halter, 131 F. Supp.2d 942, 944 (E.D. Mich. 2001). However, the Court "is not required to articulate all of the reasons it rejects a party's objections." Id. (citations omitted).
DISCUSSION
Defendant Aydar moves to dismiss Plaintiff's claims against him pursuant to the Prison Litigation Reform Act (PLRA). 42 U.S.C. § 1997e(a), for lack of exhaustion. PLRA Section 1997e(a) provides that "[n]o 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. § 1997(e)(a). Magistrate Judge Pepe found that Plaintiff did not exhaust his administrative remedies against Defendant Aydar because the administrative grievances filed by Plaintiff either did not mention Defendant Aydar, or did mention Defendant Aydar but were not appealed through all the steps in the administrative grievance procedures available to Plaintiff. ( See 10/22/02 RR).
Plaintiff's objection to the RR does not contend that he did, in fact, exhaust his administrative remedies against Defendant Aydar, but rather that he made a "good faith attempt" to exhaust; therefore, he contends the Court should find that he did "substantially" exhaust his administrative remedies against Defendant Aydar. In support, Plaintiff cites four cases from the Fifth Circuit. See Shah v. Quinlin, 901 F.2d 1241 (5th Cir. 1990); Holloway v. Gunnell, 685 F.2d 150 (5th Cir. 1982); Arvie v. Stalder, 53 F.3d 702 (5th Cir.1995); Rocky v. Vittorie, 813 F.2d 734 (5th Cir. 1987). These cases, however, were decided before the passage of the PLRA.
Since the passage of the PLRA, the Sixth Circuit has held that "the exhaustion requirement is now a necessary prerequisite to filing prisoner claims in federal court, and the district court no longer has the discretion to `waive' exhaustion as it did before passage of the 1996 Act." Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir. 1999). "The plain language of the [PLRA] . . . makes exhaustion a precondition to filing an action in federal court under the statute." Wyatt v. Moore, 199 F.3d 324, 327 (6th Cir. 1999)( citing Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998)). Because Plaintiff admittedly has only "made a good faith attempt to exhaust [administrative] remedies," (Pl.'s Obj.), against Defendant Aydar, his objection to the RR is overruled, and his claims against Defendant Aydar must be dismissed pursuant to 42 U.S.C. § 1997e(a).
This precondition can be satisfied by substantial compliance where the events giving rise to the claim occurred before the PLRA took effect in 1996. See Wolff v. Moore, 199 F.3d 324, 327 (6th Cir. 1999). This exception does not apply in the case at bar, however, because the events giving rise to Plaintiff's claims occurred in 2001 and beyond. ( See Compl.).
After careful review of Magistrate Judge Pepe's RR and Plaintiff's objection thereto, the Court concurs with Magistrate Judge Pepe's recommendation and overrules Plaintiff's objection thereto. Accordingly,
IT IS ORDERED that Defendant Sevin N. Aydar's Motion to Dismiss is hereby GRANTED, and Plaintiff's Complaint is hereby DISMISSED against Defendant Aydar.