Opinion
No. 3:04-CV-0667-L.
April 27, 2004
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, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
In March 2004, plaintiff, a prisoner incarcerated in the Hutchins State Jail facility of the Texas Department of Criminal Justice, filed this civil action under 42 U.S.C. § 1983 alleging numerous violations of his constitutional rights related to the conditions of his imprisonment. (Compl. at 1, 6.) He sues T. Simpson, Warden of the Hutchins State Jail facility; Nathaniel Quarterman, Director of the State Jail Division of the Texas Department of Criminal Justice; and the University of Texas Medical Branch. ( Id. at 1-2.) No process has been issued in this case.
II. EXHAUSTION
A prisoner must fully exhaust administrative remedies before pursing a civil action concerning prison conditions. Section 1997e(a) of Title 42 of the United States Code, as amended by the Prison Litigation Reform Act of 1996 (PLRA), provides that "[n]o 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." This "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 (2002). Exhaustion is a prerequisite to suit even when the prisoner seeks relief not available in grievance proceedings such as money damages. See Booth v. Churner, 532 U.S. 731, 740-41 (2001).
To exhaust in accordance with § 1997e(a), a prisoner in a facility of the TDCJ must pursue his administrative remedies under the two-step grievance procedure applicable in the Texas prison system. See Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998). The Fifth Circuit has described the two-step procedure as follows:
As part of TDCJ, the Hutchins State Jail follows the same two-step procedure.
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 departmental grievance investigator prepares 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 procedure 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 then 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.Id. at 891 (citations omitted).
Exhaustion under the PLRA is mandatory, and the requirement is strictly construed. See Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003). When a prisoner fails to exhaust his administrative remedies prior to filing suit, without a valid excuse, the Court properly dismisses the action without prejudice to its refiling after the prisoner exhausts his administrative remedies. See Wendell, 162 F.3d at 890-91. The Court does not "inquire whether administrative procedures satisfy minimum acceptable standards of fairness and effectiveness"; prisoners simply "must exhaust such administrative remedies as are available, whatever they may be." Alexander v. Tippah County, 351 F.3d 626, 630 (5th Cir. 2003) (citations and internal quotation marks omitted), cert. denied, ___ S.Ct. ___, ___ U.S. ___, No. 03-8992, 2004 WL 875582 (Apr. 26, 2004).
In this case, plaintiff concedes that he has not exhausted his administrative remedies. ( See Compl. at 2.) He states "Too many issues, many not grievable." ( Id.) Such statement provides no excuse for the failure to exhaust. Consequently, his complaint should be dismissed.
III. RECOMMENDATION
For the foregoing reasons, it is recommended that the District Court summarily DISMISS plaintiff's complaint without prejudice for plaintiff's failure to exhaust his administrative remedies.