Opinion
2:04-CV-0164.
October 13, 2004
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff MARIO NAVARRETTE, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Institutional Division, has filed suit pursuant to Title 42, United States Code, section 1983 complaining against the above-referenced defendants and has been granted permission to proceed in forma pauperis.
Plaintiff complains a December 15, 2002 surgery by defendant doctors DUFF and McNEIR was improperly performed, resulting in severe deformity and that now a growth the size of a volleyball is presently protruding from plaintiff's stomach at the site of the surgery. Plaintiff claims DUFF and McNEIR were negligent, that defendant Dr. LACEY has provided inadequate or non-existent post-surgery care, and that defendant DRETKE authorizes reduction in the treatment prescribed by a physician.
Plaintiff requests injunctive relief requiring TDCJ-CID to provide him with a specialist to examine, diagnose and treat his problem with his abdomen, compensatory damages, and, citing his deformity, punitive damages of $1,000,000.00.
JUDICIAL REVIEW
When a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, the Court must evaluate the complaint and dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 1915A; 28 U.S.C. 1915(e)(2). The same standards will support dismissal of a suit brought under any federal law by a prisoner confined in any jail, prison, or other correctional facility, where such suit concerns prison conditions. 42 U.S.C. 1997e(c)(1). A Spears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n. 4 (5th Cir. 1991).The District Judge has reviewed plaintiff's pleadings and has viewed the facts alleged by plaintiff in his complaint to determine if his claims present grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
Title 42, United States Code, 1997e(a), as amended by Section 803 of the Prison Litigation Reform Act of 1995, provides that "[n]o action shall be brought with respect to prison conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." "[T]he 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, 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002).
In response to question no. III of the complaint form inquiring whether the plaintiff has exhausted both steps of the grievance procedure, plaintiff has marked "No" but has submitted a letter addressed to the Patient Liaison Program. Plaintiff has presented no argument showing how writing a letter to the Patient Liaison Program would exhaust administrative remedies. Further, the Court is puzzled by plaintiff's submission of this particular letter as it does not complain of any of the matters plaintiff asserted in his complaint, but merely concerns the decrease of his Isocal from four days to three days per week. Plaintiff states this was prescribed to assist him in gaining weight in preparation for an upcoming surgery.
At any event, as plaintiff pleads, he has not utilized the grievance system concerning the facts giving rise to his claims herein. It is clear plaintiff has not exhausted administrative remedies before filing suit in federal court and, therefore, his claims are barred by Title 42, United States Code, section 1997e(a).
CONCLUSION
Pursuant to Title 28, United States Code, sections 1915A and 1915(e)(2), as well as Title 42, United States Code, section 1997e(c)(1),
IT IS HEREBY ORDERED that the Civil Rights Complaint filed pursuant to Title 42, United States Code, section 1983, by plaintiff MARIO NAVARRETTE, is DISMISSED WITHOUT PREJUDICE AS BARRED BY PLAINTIFF'S FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES BEFORE FILING SUIT. 42 U.S.C. § 1997e(a).
The Clerk shall send a copy of this order to plaintiff by first class mail. The Clerk shall also mail copies of this order to TDCJ-Office of the General Counsel, P.O. Box 13084, Austin, TX 78711; and to the Pro Se Clerk at the U.S. District Court for the Eastern District of Texas, Tyler Division.
Any pending motions are DENIED.
IT IS SO ORDERED.