Opinion
Civil Action No. 1:06CV47.
May 26, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Plaintiff R.W. Quebodeaux, an inmate confined in the Stiles Unit of the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, brings this civil rights complaint pursuant to 42 U.S.C. § 1983.
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 complains of his conditions of confinement at the Stiles Unit.
Analysis
Exhaustion of Administrative Remedies
Section 1997(e) of the Civil Rights of Institutionalized Persons Act, 42 U.S.C. §§ 1997- 1997j, requires prisoners to exhaust administrative remedies before initiating a prison condition case brought under 42 U.S.C. § 1983. The statute provides in pertinent part the following: "No action shall be brought with respect to prison conditions under section 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." 42 U.S.C. § 1997e(a).
The Texas Department of Criminal Justice, Correctional Institutions Division currently employs a two step grievance procedure which takes approximately 90 days to exhaust. See Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998). Step one of the grievance procedure involves the prisoner submitting a grievance to the unit grievance coordinator. The unit grievance investigator will investigate the grievance, collect documents and other evidence, interview witnesses, draft an investigation report of findings and prepare a recommendation for the review of the decision maker. The authorized decision maker for a step one grievance is the warden or assistant warden.
Step two of the grievance procedure involves the prisoner submitting an appeal to the division grievance investigator at TDCJ-CID headquarters. The division grievance investigator will investigate the grievance, collect documents and other evidence, interview witnesses, draft an investigation report of findings and prepare a recommendation for the review of the decision maker. The decision maker for a step two grievance is the regional director or assistant director.
Plaintiff admits he did not exhaust the available grievance procedure prior to filing this action, asserting that he submitted a grievance "but since the grievance office is named in this suit I decided to send this in A.S.A.P. — I'll send the grievance in when I get it." The relevant statutory provision "plainly requires that administrative remedies be exhausted before the filing of a § 1983 suit, rather than while the action is pending." Wendell, 162 F.3d at 890.
Administrative remedies must be exhausted regardless of the type of relief which is sought in the lawsuit. Booth v. Churner, 532 U.S. 731, 740-41 (2001). "[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, 532 (2002). Accordingly, this section 1983 action should be dismissed without prejudice due to plaintiff's failure to exhaust administrative remedies prior to bringing the action, as required by 42 U.S.C. § 1997e(a).
Recommendation
Plaintiff's complaint should be dismissed for failing to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e.
Objections
Within ten (10) days after being served with a copy 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, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FHello This is a Test ED. R. CIV. P. 72.