Opinion
No. 3:04-CV-2215-L.
January 7, 2005
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 District 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 confined at the Dawson State Jail of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Dallas, Texas. Defendant is Lt. Salvador from the Jester III Unit of TDCJ-CID in Richmond, Texas. The court has not issued process in this case. However, on November 8, 2004, the Magistrate Judge issued a questionnaire to Plaintiff, who filed his answers on November 29, 2004.
Statement of Case: The complaint alleges Defendant Salvador handcuffed Plaintiff's hands behind his back and then forced him to hop down the hallway without the use of his crutches, causing additional damage to his right knee. Plaintiff seeks monetary damages in the amount of $250,000.
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 has 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, 534 U.S. 516, 532, 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002). Even when the prisoner seeks relief not available in grievance proceedings, notably monetary damages, exhaustion is a prerequisite to suit. Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001). 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. Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998).
TDCJ currently provides a two-step procedure for presenting administrative grievances. Wendell, 162 F.3d at 891; see also Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004).
In Wendell, 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.
The grievance procedures takes approximately 90 days to exhaust. Prisoners are allowed 15 calendar days to file a step 1 grievance. The response to the step 1 grievance is due within forty days after receipt of the grievance. The prisoner ten has 10 days to submit an appeal. The response to the step 2 grievance is due within forty days after receipt of the prisoner's appeal.Wendell, 162 F.3d at 891 (citations omitted).
In the civil rights complaint form, as well as in answer to the magistrate judge's questionnaire, Plaintiff concedes that he did not exhaust both steps of the grievance procedure before filing this suit. (See Complaint at 2 ¶ III, and Answer to Question 2 of the questionnaire). He apparently filed a step 1 grievance with the Jester III Unit, but did not receive a response. (Answer to Question 2). He surmises the response did not reach him because he had been transferred to the Dawson State Jail. (Id.). Plaintiff does not raise any other excuse for failing to exhaust his available administrative remedies. Consequently, the complaint should be dismissed without prejudice for failure to exhaust administrative remedies. RECOMMENDATION:
In Johnson v. Johnson, 385 F.3d 503, 521 (5th Cir. 2004), the Fifth Circuit recently stated that "prisoners need not continue to file grievances about the same issue." UnlikeJohnson, however, Plaintiff never even once fully exhausted his administrative remedies before filing this action — i.e., filed a step 1 grievance, which was followed by an appeal through the step 2 grievance process.
For the foregoing reasons, it is recommended that Plaintiff's complaint be dismissed without prejudice for failure to exhaust administrative remedies. See 42 U.S.C. § 1997e(a).
A copy of this recommendation will be mailed to Plaintiff Deangelo Edward Jefferson, #1193497, TDCJ, Dawson State Jail, P.O. Box 650051, Dallas, Texas 75265.