Opinion
2:03-CV-0159.
July 6, 2004
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff NELSON HAWKINS, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Institutional Division, filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-referenced defendants and was granted permission to proceed in forma pauperis.
Plaintiff complains that, on his arrival at the Tulia Transfer Unit on June 6, 2002, he was assigned to sleep in a top bunk, despite his protestation that he was restricted from sleeping on a top bunk because of an earlier back condition. Plaintiff claims defendant Nurse KNHER did not order an x-ray or get an accident report to put in plaintiff's medical records. He further claims KNHER should have looked into plaintiff's medical records and seen that plaintiff had a pre-existing back problem and top bunk restriction. Because of this failure, he claims, she interfered with the treatment plan prescribed by the physician who had given plaintiff a top bunk restriction.
Plaintiff claims defendant GONZALEZ did not satisfactorily resolve plaintiff's complaints of pain, but allowed "unconstitutional practices" to occur and continue.
Plaintiff claims defendant QUALITY SERVICES/RISK MANAGEMENT DIRECTOR has not provided plaintiff a back brace as prescribed by a doctor.
Plaintiff claims defendant COCKRELL was Director of the Texas Department of Criminal Justice, Institutional Division, and was responsible for plaintiff's safety and general well-being.
Lastly, plaintiff claims defendant ALLEN, as grievance supervisor at the Estelle Unit, failed to remedy the violation of plaintiff's constitutional rights after learning of it through his grievance.
Plaintiff requests proper evaluation and medical treatment, as we as compensatory damages for pain, suffering and humiliation.
JUDICIAL REVIEW
When a prisoner confined in any jail, prison, or other correctional facility brings an action with respect to prison conditions under any federal law, the Court may 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. 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 claims present 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).In response to section III of the Questionnaire asking whether the plaintiff has exhausted both steps of the grievance procedure, plaintiff checked the box for "Yes." Further, plaintiff attached several step 1 and step 2 grievances; however, review of these grievances fails to uncover any indication that plaintiff exhausted administrative remedies as to the claims asserted herein.
Plaintiff's step 2 and step 1 grievance #2003115595 complains of the medical treatment by a Dr. Khoshdel. The response by prison officials shows the doctor had made arrangement for an MRI of plaintiff's back and had ordered a back support and prescribed medication for pain and planned for monitoring of plaintiff's condition. This grievance, like all the other step 1 and step 2 grievances attached by plaintiff, was not submitted until nine months after the complained-of incident and complains of matters at the Estelle Unit.
By his Step 1 grievance #2003123380, plaintiff complains again and his medical treatment and requests a copy of the accident report for the June 6, 2002, incident. In no way does this grievance constitute exhaustion of administrative remedies for the claims asserted in this cause.
In addition, plaintiff has submitted two copies of an unnumbered step 1 grievance which contains no indication it was ever submitted to prison officials. By this step 1 grievance, plaintiff complaints that nurse KNHER never gave him a copy of the accident report and that the medication he has since received has not been effective in treating his back pain. This grievance is signed by plaintiff on March 3, 2003, is not processed by prison officials, and does not exhaust the grievance procedures concerning the claims asserted herein.
It is clear plaintiff has not utilized the grievance system concerning the claims asserted in the instant cause and, therefore, is asserting claims for which he has not exhausted 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, plaintiff's 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).
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 the Pro Se Clerk at the U.S. District Court for the Eastern District of Texas, Tyler Division.
IT IS SO ORDERED.