Opinion
Case Number 06-12197-BC.
November 16, 2006
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND GRANTING DEFENDANTS' MOTION TO DISMISS
This matter is before for the Court on a report issued by Magistrate Judge Charles E. Binder on September 8, 2006, recommending that the motion to dismiss from defendants A. Faghihnia and Josiah Smith be granted and that the plaintiff's complaint be dismissed for failure to demonstrate exhaustion of administrative remedies, as required by 42 U.S.C. § 1997e(a).
The plaintiff, who is currently incarcerated by the Michigan Department of Corrections, alleged that the remaining defendants, Drs. Faghihnia and Smith, violated his constitutional rights under 42 U.S.C. § 1983, by failing to diagnose and treat an injury the plaintiff suffered. This Court referred the case to the magistrate judge for general case management on August 14, 2006.
The magistrate judge recommended dismissing the complaint because the plaintiff had not exhausted his administrative remedies. 42 U.S.C. § 1997e(a) provides: "No action shall be brought with respect to prison conditions under . . . [§ 1983] . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." See Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998) ("requir[ing] that prisoners filing § 1983 cases involving prison conditions must allege and show that they have exhausted all available state administrative remedies"). Additionally, a plaintiff "may not amend his complaint to cure the failure to plead the exhaustion of administrative remedies" when § 1997e(a) applies to his action. Baxter v. Rose, 305 F.3d 496, 488 (6th Cir. 2002).
The plaintiff timely filed objections to the magistrate judge's recommendation. In response to the magistrate judge's conclusion that the plaintiff had not exhausted the administrative grievance process, the plaintiff provided documentation of the final two steps of the grievance procedure. The plaintiff asserts that the Michigan Department of Corrections, and not the plaintiff, caused the delay in providing these copies. The plaintiff did not preserve any other objection, and "only those specific objections to the magistrate's report made to the district court will be preserved for appellate review." Willis v. Sec'y of Health Human Servs., 931 F.2d 390, 401 (6th Cir. 1991) (citation omitted).
The plaintiff filed his complaint on May 12, 2006. The three steps of the grievance procedure concluded on March 22, 2006, May 23, 2006, and August 22, 2006, respectively. Thus, the plaintiff did not exhaust the administrative procedure before filing suit, and he may not amend his complaint to correct this deficiency.
Accordingly, it is ORDERED that the magistrate judge's report and recommendation [dkt #38] is ADOPTED, the plaintiff's objections [dkt #40] are OVERRULED, the motion to dismiss from defendants A. Faghihnia and Josiah Smith [dkt #28] is GRANTED, and the case is DISMISSED WITHOUT PREJUDICE.
It is further ORDERED that the motion to dismiss from defendants Michigan Department of Corrections and Michigan State Industries [dkt #23] is DISMISSED as moot.
It is further ORDERED that the plaintiff's motion to amend [dkt #32] is DISMISSED as moot.