Summary
finding failure to exhaust where plaintiff explained that he could not submit a copy of step 2 grievances because he never heard back after filing step 1 grievance, but failed to state any other attempts to exhaust the grievance system, such as submitting another step 1 grievance
Summary of this case from Jefferson v. LoftinOpinion
2:01-CV-0186
April 1, 2003
ORDER OF DISMISSAL
Plaintiff RODNEY WAYNE SAYLORS, acting pro se and in forma pauperis while a prisoner confined 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-named defendants. On March 21, 2003, a Report and Recommendation was filed by the United States Magistrate Judge analyzing plaintiff's claims under Title 42, United States Code, section 1997e(c)(1), and recommending plaintiff's claims be dismissed as frivolous and for failure to exhaust administrative remedies before filing suit in federal court.
Plaintiff filed his Objections on March 31, 2003.
By his Objections, plaintiff states he filed a step 1 grievance on May 30, 1999, but lost his copy. He alleges that step 1 grievance was not returned. Plaintiff says that, on July 5, 1999, he submitted another step 1 grievance which was returned two days later stating his time limit had expired. Plaintiff says a friend of his then helped him file his complaint, which plaintiff states was filed on May 25, 1999, and on May 9, 1999. Plaintiff further states he was then transferred to the McConnel Unit where his property was lost, and that is why he could not send copies of his grievance with his lawsuit.
Plaintiff filed this lawsuit in May of 2001; and the Court cannot make sense of the dates plaintiff provides in his objections concerning this matter.
Of course, plaintiff is not penalized for failing to attach copies of his grievances to his complaint. Nevertheless, by his own representations contained in his October 30, 2001 Questionnaire Response and in his March 31, 2003 Objections, plaintiff makes clear that he never filed or attempted to file a step 2 grievance. Consequently, plaintiff has not exhausted administrative remedies; and the instant suit is barred pursuant to Title 42, United States Code, section 1997e(a).
The Court has made an independent examination of the records in this case and has examined the Magistrate Judge's Report and Recommendation, as well as the objections filed by the plaintiff.
The Court is of the opinion that the objections of the plaintiff should be OVERRULED and that the Report and Recommendation of the United States Magistrate Judge should be ADOPTED by the United States District Court.
This Court, therefore, does OVERRULE plaintiff's objections, and does hereby ADOPT the Report and Recommendation of the United States Magistrate Judge.
IT IS THEREFORE ORDERED that, pursuant to Title 42, United States Code, section 1997e(c)(1), the Civil Rights Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff RODNEY WAYNE SAYLORS IS DISMISSED WITH PREJUDICE AS
FRIVOLOUS AND FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES BEFORE FILING SUIT IN FEDERAL COURT. 42 U.S.C. § 1997e(a).
LET JUDGMENT BE ENTERED ACCORDINGLY.
Any motions still pending are hereby DENIED.
The Clerk will mail a copy of this Order to the plaintiff and to any attorney of record by first class mail. The Clerk will also mail a copy of this Order to TDCJ-Office of the General Counsel, P.O. Box 13084, Capitol Station, Austin, Texas 78711, and to Claire Laric at the United States District Court for the Northern District of Texas, Dallas Division.
IT IS SO ORDERED.
JUDGMENT
Of equal date herewith, the Court has entered an Order of Dismissal.JUDGMENT IS ENTERED ACCORDINGLY.
U IS THEREFORE ORDERED and DECREED that pursuant to pursuant to Title 42, United States Code, section 1997e(c)(1), the Civil Rights Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff RODNEY WAYNE SAYLORS is DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES BEFORE FILING SUIT IN FEDERAL COURT. 42 U.S.C. § 1997e(a). The Clerk will mail a copy of this Judgment to the plaintiff, and to each attorney of record by first class mail.
IT IS SO ORDERED.