Opinion
Civil Action No. 4:01-CV-861-Y
March 26, 2002
ORDER OF DISMISSAL
In this action, plaintiff Juan Escobedo Herrera, an inmate at the Tarrant County jail, filed a pro-se form complaint seeking relief under 42 U.S.C. § 1983 against Tarrant County Sheriff Dee Anderson and Mae Pasquet, Director of Nursing, Tarrant County jail. (Compl. Style; § III(B)(C).) Herrera complains of the presence of spiders in the Tarrant County jail Green Bay facility, an apparent spider bite, and that the medical department gave him the wrong antibiotic and failed to afford him proper medical attention for a hole in his arm (apparently related to the spider bite). (Compl. § IV.) Herrera claims that he presented complaints through a grievance system, however, he has not attached copies of any grievances and or responses related to his complaints, and he acknowledges in his complaint that he turned in a grievance about the "spider problem" on October 18, 2001 (five days before he signed the instant complaint on October 23). (Compl. § II (G)(2).) Herrera seeks monetary and punitive damages and he seeks the chance to obtain outside medical care. (Compl. at Prayer.)
Herrera makes reference to having the "State drop charges against him," but any claim challenging pending charges is not cognizable in a § 1983 action.
The Prison Litigation Reform Act amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under [ 42 U.S.C. § 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." In Booth v. Churner, 121 S.Ct. 1819 (2001), the Supreme Court held that Congress intended a prisoner to invoke whatever administrative grievance remedies are available within a jail or prison, without regard to whether the grievance procedure affords money-damage relief, before he may file suit contesting prison conditions in federal court. As the Court of Appeals for the Fifth Circuit has since explained:
42 U.S.C.A. § 1997e(a) (West Supp. 2001).
Booth, 121 S.Ct. 1819, 1824-25.
Quibbles about the nature of a prisoner's complaint, the type of remedy sought, and the sufficiency or breadth of prison grievance procedures were laid to rest in Booth. Justice Souter summed up the Court's conclusion in a footnote:
Here, we hold only that Congress has provided in § 1997e(a) that an inmate must exhaust irrespective of the forms of relief sought and offered through administrative sources.
Wright v. Hollingsworth, No. 99-40063, 2001 WL 838861 at *1 (5th cir. 2001 July 24, 2001), citing Booth, 121 S.Ct. at 1825 n. 6.
More recently, the Supreme Court has clarified that the 1997e(a) 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, No. 00-853, 2002 WL 261683, at *10 (U.S. Feb. 26, 2002).
Plaintiff Herrera has not shown that he exhausted administrative remedies on each of the allegations made the basis of his complaint. Although he began administrative remedies as to one of his claims, he did not complete the process, as he noted that he only sent the grievance over the "spider problem" just five days before he delivered this suit. Further, he has provided no explanation or proof of exhaustion of administrative remedies concerning his claims against the individuals from whom he seeks monetary damages in this suit. Also, even if Herrera sought only money damages, the fact that Tarrant County authorities would not have afforded him monetary damages as possible relief on such claims, has no bearing on his 1997e(a) obligation to exhaust under Booth. Thus, Plaintiff's claims must be dismissed without prejudice pending exhaustion of any administrative remedies.
Several courts have recognized a district court's obligation to impose the exhaustion requirement prior to any consideration of the merits, and even when the inmate claims such procedures are inadequate or futile. See generally Perez v. Wisconsin Dep't of Corrections, 182 F.3d 532, 536 (7th Cir. 1999) (Vacating district court's denial of prisoner's Eighth Amendment claims on the merits, and remanding with instructions to dismiss for failure to exhaust administrative remedies under § 1997e(a), noting that "(1997e(a) can function properly only if the judge resolves disputes about its application before turning to any other issue in the suit . . . ." [and noting] "As for the possibility that administrative remedies could be declared futile ex ante, without ever being tried: what would be the point of asking judges to be seers? Then the simplicity of § 1997e(a) would be lost, and instead of requiring exhaustion of remedies it would lead to guesswork about counterfactual situations."); Alexander v. Hawk, 159 F.3d 1321, 1326 (11th cir. 1998) ("Since exhaustion is now a pre-condition to suit, the courts cannot simply waive those requirements where they determine they are futile or inadequate. Such an interpretation would impose an enormous loophole in the PLRA, which congress clearly did not intend."); Lavista v. Beeler, 195 F.3d 254, 258 (6th Cir. 1999) (rejecting futility argument where record demonstrated that plaintiff had not actually shown he tried to bring his issues before the Bureau of Prisons).
It is therefore ORDERED that all of Plaintiff's claims be, and they are hereby, DISMISSED WITHOUT PREJUDICE to their being refiled after he exhausts available administrative remedies.
See Wright, 2001 WL 838861, at *2 (holding both that dismissal of a case for the failure of the plaintiff to exhaust administrative remedies under 42 U.S.C. § 1997e(a)should be without prejudice and that the applicable statute of limitations should be equitably tolled during the pendency of dismissed suit and any additional administrative proceedings).