Opinion
3:02-CV-582-M
April 2, 2002
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 court in implementation thereof, this case has been referred to the United States magistrate judge. The findings, conclusions and recommendation of the magistrate judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type of Case: This is a civil rights complaint brought by a state inmate pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is presently incarcerated at the Dawson State Jail of the Texas Department of Criminal Justice (TDCJ), State Jail Division, in Dallas, Texas. Defendants are Sergeant Hurdell L. Jones, Officer Bryan D. Woodard, Lieutenant Lovely, and Officer Shaquona Coleman. All Defendants are employees of the Dawson State Jail. The court has not issued process in this case.
Statement of Case: The complaint alleges Plaintiff was strip searched after working in the law library on personal legal matters related to his incarceration. Daring the strip search, Plaintiff informed Defendants that TDCJ policy requires that inmates in the law library be pat searched, not stripped naked. Two hours following the strip search Plaintiff was charged with a disciplinary case, which Plaintiff alleges was in retaliation for citing prison policy and seeking access to the court. He requests compensatory and punitive damages. (Complaint at 3-4).
Findings and Conclusions: 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 recently 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, ___ U.S. ___, 122 S.Ct. 983, 992 (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); Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001). The exhaustion requirement is not jurisdictional. Underwood v. Wilson, 151 F.3d 292, 293-95 (5th Cir. 1998). "Rather, the amended statute [ 42 U.S.C. § 1997e(a)] imposes a requirement, rather like a statute of limitations, that may be subject to certain defenses such as waiver, estoppel or equitable tolling." Wendell v. Asher, 162 F.3d 887, 889 (5th Cir. 1998). When a prisoner fails to exhaust his administrative remedies prior to filing suit, without a valid excuse, defendants are entitled to judgment as a matter of law dismissing the prisoner's complaint, but the dismissal must be without prejudice to refiling after exhausting his administrative remedies. Id. at 891.
TDCJ currently provides a two-step procedure for presenting administrative grievances. Wendell, 162 F.3d at 891. The Dawson State Jail, which is part of TDCJ, follows the same two-step procedures. InWendell, the Fifth Circuit 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, assistant warden, facility administrator, assistant facility administrator, or health administrator. Step 2 permits the prisoner to submit an appeal to the division grievance investigation with the Institutional Division of the Texas Department of Criminal Justice. After an investigation, the department grievance investigator prepare 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.
In paragraph three of the civil rights complaint form, Plaintiff concedes that he did not exhaust his administrative remedies before filing this suit. (See Complaint at 3). Plaintiff has not raised any valid excuses for failing to exhaust his available administrative remedies. Therefore, the District Court should dismiss Plaintiffs complaint without prejudice to refiling after exhaustion of administrative remedies.
RECOMMENDATION:
For the foregoing reasons, it is recommended that Plaintiffs complaint be dismissed without prejudice for failure to exhaust administrative remedies. See 42 U.S.C. § 1997e(a).