Opinion
No. 3:04-CV-1019-G.
October 13, 2004
SUPPLEMENTAL 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, this case has been referred to the United States Magistrate Judge. The supplemental findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
On September 22, 2004, the magistrate judge filed his findings and conclusions recommending that this case be dismissed for want of jurisdiction. The magistrate judge found that Plaintiff's case was not ripe for adjudication, that he had failed to exhaust his administrative remedies, and that the named defendants were not proper parties in an action under 42 U.S.C. § 1983. On October 1, 2004, Plaintiff filed his objections along with motions for continuance and to amend. In the first motion, Plaintiff requests a forty-day extension to exhaust his administrative remedies through the grievance procedure, whereas in the second motion, he seeks leave to amend to bring criminal charges against the individual defendants, and to allege the personal involvement of the nine unpaid citizens who are appointed by the Governor to the Texas Board of Criminal Justice.
Although exhaustion under 42 U.S.C. § 1997e(a) is not jurisdictional, Underwood v. Wilson, 151 F.3d 292, 293-95 (5th Cir. 1998), it is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002); Booth v. Churner, 532 U.S. 731, 741 (2001). Section 1997e(a) specifically provides:
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 Fifth Circuit Court of Appeals has construed § 1997e(a) to require "that administrative remedies be exhausted before the filing of a § 1983 suit, rather than while the action is pending." Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998) (emphasis added). "To hold otherwise would encourage premature filing by potential litigants, thus undermining Congress' purpose in passing the PLRA, which was to provide the federal courts some relief from frivolous prisoner litigation." Id. at 891 (citing Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir. 1998)).
Plaintiff has not raised any valid excuse for failing to exhaust his available administrative remedies before filing the complaint in this case. In light of the statutory mandate of § 1997e(a), the District Court should deny Plaintiff's motions for leave to amend and for a continuance to exhaust administrative remedies during the pendency of this suit.
RECOMMENDATION:
For the foregoing reasons, it is recommended that Plaintiff's motions for leave to amend and for a continuance be denied, and that the complaint be dismissed for want of jurisdiction because it is not ripe for adjudication, as set out in the recommendation filed on September 22, 2004.
A copy of this recommendation will be mailed to Plaintiff Robert N. Smithback, #1080109, TDCJ, Polunsky Unit, 3872FM 350 South, Livingston, Texas 77351-9669.