Opinion
Civil Action No. 1:06cv299.
June 13, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Tyrone Horace, an inmate confined at the Jefferson County Correctional Facility, proceeding pro se, filed this civil rights lawsuit.
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 inmates confined at the Jefferson County Correctional Facility were not evacuated from the area during Hurricane Rita in September 2005. He states the inmates were merely moved to the old jail in downtown Beaumont. He further complains of conditions at the old jail.
Analysis
The Civil Rights of Institutionalized Persons Act of 1980, as amended, provides that no action shall be brought concerning prison conditions by a prisoner confined in a jail, prison or other correctional facility until the administrative remedies at such facility are exhausted. 42 U.S.C. § 1997e. A prisoner must exhaust administrative remedies regardless of the type of relief he seeks and regardless of whether the particular type of relief sought is available through applicable grievance process. Booth v. Churner, 532 U.S. 731, 741 (2001).
Plaintiff does not allege he exhausted his administrative remedies prior to filing this lawsuit. As plaintiff did not exhaust his administrative remedies prior to filing this lawsuit, his complaint should be dismissed without prejudice for failure to exhaust administrative remedies. Plaintiff will be free to refile his lawsuit after exhausting his administrative remedies.
Recommendation
This lawsuit should be dismissed without prejudice for failure to exhaust administrative remedies.
Objections
Within ten (10) days after receipt 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 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72.