Opinion
3:04-CV-647-L
April 5, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge follow:
FINDINGS AND CONCLUSIONS I. Parties
Plaintiff is currently confined in the Hutchins State Jail. He brings this suit pursuant to 42 U.S.C. § 1983. Plaintiff is proceeding pro se, and the Court has granted him permission to proceed in forma pauperis. Defendants are Warden T. Simpson, State Jail Director Nathaniel Quaterman and the University of Texas Medical Branch.
II. Background
Plaintiff alleges Defendants have violated his civil rights because (1) prescription medication is confiscated when an inmate arrives at the jail; (2) it takes approximately seven to ten days to see a doctor; (3) inmates must wait approximately thirty days to have a tooth pulled; (4) it sometimes takes thirty days to receive monthly medication; (5) the mental health staff changes the diagnosis of free world doctors; (6) inmates with tuberculosis do not receive a chest x-ray; (7) numerous cases of staph infections are going untreated; (8) meals are being denied to inmates; (9) utensils are dirty; (10) drinks are served in open pitchers; (11) the food does not meet dietary standards; (12) occasionally metal has been found in food; (13) inmate living space is inadequate; (14) the living areas are not sanitized; (15) plumbing is inadequate; (16) handicapped dorms are inadequate; (17) there is no air-conditioning; (18) there are no fire sprinklers; (18) guards harass the prisoners; (19) the law library is inadequate; (20) separation of inmates is not sufficient; (21) indigent supplies are inadequate; and (22) inmates are required to walk to the chow hall, laundry, mailroom and visitation room in all types of weather.
III. Discussion
Title 42 U.S.C. § 1997e(a), as amended by the Prison Litigation Reform Act of 1996 (" PLRA"), provides as follows:
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.
The Supreme Court has held that "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 524 (2002). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Booth v. Churner, 532 U.S. 731, 741 (2001); Clifford v. Gibbs, 298 F.3d 328, 330 and 332 (5th Cir. 2002). When a prisoner fails to exhaust his administrative remedies prior to filing suit, without a valid excuse, defendants are entitled to a dismissal the prisoner's complaint. Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998). The dismissal shall be without prejudice to refiling after exhausting the administrative procedures. Id. at 891.
TDCJ currently provides a two-step procedure for presenting administrative grievances. Wendell, 162 F.3d at 891. The Hutchins State Jail, which is part of the TDCJ, follows the same two-step procedures.
In Wendell, the Fifth Circuit has described the two-step procedure as follows: Step 1 requires the prisoner to submit an administrative grievance at the institutional level. After an investigation, the unit grievance investigator prepares a report and makes a recommendation to the final decision maker for Step 1 of the process, which may be the warden, facility administrator, or health administrator. Step 2 permits the prisoner to submit an appeal to the division grievance investigator with the Institutional Division of the TDCJ. After an investigation, the department grievance investigator prepares a report and makes a recommendation to the final decision maker for Step 2 of the process, which is the director, deputy director, regional director, or assistant director. Id. at 891.
Plaintiff states he did not exhaust his administrative remedies before filing this suit. See Compl.p. 3. Plaintiff states his claims are "too numerous." Id. Plaintiff has not raised any valid excuse for failing to exhaust his administrative remedies. The Court therefore recommends that this complaint be dismissed.
RECOMMENDATION
The Court recommends that the complaint be dismissed without prejudice for failure to exhaust administrative remedies.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions and recommendation on Plaintiff by mailing a copy to him by United States Mail. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Services Auto. Ass'n. 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc)