Garcia v. Howard

Full title: MARTIN R. GARCIA, PRO SE, TDCJ-ID #646976, Plaintiff, v. WILHELMENIA…

Court: United States District Court, N.D. Texas

Date published: Aug 23, 2001

2:99-CV-0413 (N.D. Tex. Aug. 23, 2001)

Opinion

2:99-CV-0413

August 23, 2001

MEMORANDUM OPINION AND ORDER OF DISMISSAL

MARY ROBINSON, District Judge

Plaintiff MARTIN R. GARCIA, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Institutional Division, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-referenced defendants and has been granted permission to proceed in forma pauperis.

On May 29, 2001, the Supreme Court issued Booth v. Churner, 531 U.S. 956, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001), construing Title 42, United States Code, section 1997e(a), to require exhaustion of administrative remedies before filing suit in federal court, even though the prison administrative process does not make specific provision for monetary relief. On July 24, 2001, the United States Court of Appeals for the Fifth Circuit issued Wright v. Hollingsworth, ___ F.3d ___ (2001 WL 838861) (5th Cir. 2001), applying the Booth v. Churner construction of the section 1997e(a) exhaustion of administrative remedies requirement to a case pending before the Fifth Circuit. The Court noted that Booth effectively overruled earlier Fifth Circuit precedent established in Whitley v. Hunt, 158 F.3d 882 (5th Cir. 1998), and, citingWendell v. Asher, 162 F.3d 887, 892 (5th Cir. 1998) and Harris v. Hegman, 198 F.3d 153, 157\en\59 (5th Cir. 1999), dismissed Wright without prejudice pending exhaustion of TDCJ grievance procedures and tolled limitations pending exhaustion.

On July 27, 2001, this Court issued a show cause order giving plaintiff fourteen days to respond and show cause why the instant suit should not be dismissed with prejudice for failure to exhaust administrative remedies before filing suit in federal court as required by Title 42, United States Code, section 1997e(a). Plaintiff responded on August 13, 2001.

By his response, plaintiff argues he could not file within the 15-day limit for submission of grievances because he was "under close medical supervision at Baptist St. Anthony and other medical facilities from June 29, 1998, the date of the attack, until July 17, 1998, during which time he was unable to gain access to the TDCJ grievance system because the free-world hospital does not have grievance forms and no one [sic] around to assist plaintiff." Plaintiff further contends he was incapable, both physically and mentally, of availing himself of the grievance system and had no one to help him. Lastly, plaintiff argues it would have been futile since the grievance system does not provide for monetary relief.

Plaintiff's earlier sworn pleadings show his representation of facts to be inaccurate. By his April 13, 2000, Amended Complaint, plaintiff states that he was attacked on June 28, 1998, transferred to High Plains Baptist Hospital on July 2^nd where surgery was performed, transferred to the Clements Unit infirmary on July 5^th, and returned to the Neal Unit on July 13^th with assignment to transient status. Plaintiff states that, on July 21^st, he was returned to general population following the off-unit transfer of his attackers. Thus, it appears plaintiff had access to grievances as early as July 5^th and certainly could have filed one on July 13^th, the date he was discharged from the Clements Unit infirmary and returned to the Neal Unit. Further, plaintiff never attempted to request permission to file an out-of-time grievance but elected to refrain from utilizing that process altogether. Plaintiff's present sworn statement, attached to his show cause response, that he did not file a grievance because he was incapable, physically and mentally, of availing himself of the grievance system is rebutted by his own sworn statement in his December 29, 1999, original complaint that he "did not file a grievance with the unit because the injuries he sustained at the defendants [sic] hands far exceeded any remedy offered by the grievance procedure." The Court FINDS plaintiff's December 29, 1999, statement in his sworn original complaint more credible than his later sworn statement, made after reflection upon potential adverse consequences.

Moreover, plaintiff does not address the fact that his claims, as set forth in his September 7, 2000, amended complaint,¹ are also based on the failure of prison officials to change his housing assignment and work assignment, concerning which he states he submitted several unsuccessful I-60's before the June 28^th attack. Plaintiff gives no reason why he did not submit grievances along with the I-60's or after they proved unsuccessful. Thus, plaintiff's implicit arguments that enforcement of the exhaustion requirement should be subject to waiver or estoppel are entirely without merit.

1 Erroneously titled plaintiff's first amended complaint.

Lastly, plaintiff's attempt, based on the particularities of the Texas grievance system, to distinguish his case from Booth v. Churner is undercut by the Fifth Circuit's application of the Churner holding to Wright v. Hollingsworth, a suit filed by a prisoner confined, as is plaintiff, in the Texas prison system and required to utilize that grievance system.

The Court notes that plaintiff made his decision whether or not to avail himself of administrative remedies in July of 1998, well before the Fifth Circuit's October 23, 1998, opinion in Whitley v. Hunt, 158 F.3d 882 (5th Cir. 1998) (holding an inmate was not required to exhaust administrative remedies where the only relief requested was monetary and the grievance system did not provide for a grant of such relief), abrogated, Booth v. Churner, 531 U.S. 956, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Consequently, plaintiff's decision was not made in reliance on the precepts announced in Whitley; and, though expressly provided the opportunity, plaintiff has neither requested equitable tolling nor advanced any argument why it should be granted to enable him to revisit his earlier decision not to exhaust administrative remedies and attempt a cure of this defect.

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; and plaintiff has presented no argument to justify waiver, estoppel, or equitable tolling of such requirement. Further, because they presently barred and, thus, lack an arguable basis in law, plaintiff's claims 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,

IT IS HEREBY ORDERED.

The referral of the instant cause to the United States Magistrate Judge is hereby withdrawn.

This Civil Rights Complaint is 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).

LET JUDGMENT BE ENTERED ACCORDINGLY.

All pending motions are DENIED.

The Clerk will mail a copy of this Order to the plaintiff, and to any attorney of record by first class mail. The Clerk will also mail a copy to TDCJ-Office of the General Counsel, P.O. Box 13084, Capitol Station, Austin, TX 78711 and to Claire Laric, at the United States District Court for the Northern District of Texas, Dallas Division.

IT IS SO ORDERED.