Opinion
Civil Action No. 1:06CV301.
June 13, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Dwayne Hemmingway, an inmate confined in the Jefferson County Correctional Facility, proceeding pro se, brings this civil rights complaint pursuant to 42 U.S.C. § 1983 against the State of Texas.
The above-styled action was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636 and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to the United States Magistrate Judge for findings of fact, conclusions of law, and recommendations for the disposition of the case.
Factual Background
Plaintiff states that the inmates confined in the jail were not evacuated from the area in September 2005 during Hurricane Rita. Instead, plaintiff asserts that the inmates merely were moved to the old jail facility in downtown Beaumont. Additionally, plaintiff complains of his conditions of confinement at the jail during Hurricane Rita.
Analysis
Exhaustion of Administrative RemediesSection 1997(e) of the Civil Rights of Institutionalized Persons Act, 42 U.S.C. §§ 1997- 1997j, requires prisoners to exhaust administrative remedies before initiating a prison condition case brought under 42 U.S.C. § 1983. The statute provides in pertinent part the following: "No 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. § 1997e(a).
Plaintiff has neither alleged nor demonstrated that he exhausted the available grievance procedure prior to filing this action. The relevant statutory provision "plainly requires that administrative remedies be exhausted before the filing of a § 1983 suit, rather than while the action is pending." Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998).
Administrative remedies must be exhausted regardless of the type of relief which is sought in the lawsuit. Booth v. Churner, 532 U.S. 731, 740-41 (2001). "[T]he 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, 532 (2002).
Accordingly, this section 1983 action should be dismissed without prejudice due to plaintiff's failure to exhaust administrative remedies prior to bringing the action, as required by 42 U.S.C. § 1997e(a).
Recommendation
Plaintiff's complaint should be dismissed for failing to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e.
Objections
Within ten (10) days after being served with a copy of the magistrate judge's report, any party may serve and file written objections to the findings of facts, conclusions of law and recommendations of the magistrate judge. 28 U.S.C. § 636 (b)(1)(C).
Failure to file written objections to the proposed findings of facts, conclusions of law and recommendations contained within this report within ten days after service shall bar an aggrieved party from de novo review by the district court of the proposed findings, conclusions and recommendations and from appellate review of factual findings and legal conclusions accepted by the district court except on grounds of plain error. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FHello This is a Test ED. R. CIV. P. 72.