Opinion
CIVIL ACTION NO. 03-CV-73201-DT
October 30, 2003
OPINION
Plaintiff Thomas C. Taborelli, presently confined at the Gus Harrison Correctional Facility, has filed this pro se complaint pursuant to 42 U.S.C. § 1983. Plaintiff seeks compensatory and punitive damages in an unspecified amount. The Court has reviewed Plaintiff's complaint and now dismisses it without prejudice for failure to exhaust administrative remedies. Plaintiff's Motion for Summary Judgment, filed October 28, 2003, is denied as moot.
Background
The complaint alleges that Defendants Russell and Anspach assaulted Plaintiff while Defendant Matthews held down Plaintiff's legs. The complaint also alleges that the Defendants were deliberately indifferent to Plaintiffs serious medical needs following the assault.
Plaintiff indicates on the cover sheet attached to his complaint that with respect to the exhaustion of administrative remedies, he did file a grievance with the Step 1 Grievance Coordinator, but "[n]o answer was received." Plaintiff has made no further assertions concerning the exhaustion of administrative remedies. Plaintiff also has not submitted any copy or copies of grievances he attempted to file.
Standard of Review
Plaintiff has been granted leave to proceed without prepayment of the filing fee in this action. An in forma pauperis complaint may be dismissed sua sponte for failure to state a claim. 28 U.S.C. § 1915A(b)(1); Anyanwutaku v. Moore, 151 F.3d 1053, 1058 (D.C. Cir. 1998). A complaint fails to state a claim "if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000).
Discussion
The Court has reviewed Plaintiffs complaint and now dismisses it pursuant to 42 U.S.C. § 1997e(a), as amended by the Prison Litigation Reform Act of 1996 ("PLRA"), which provides that "[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."
The Sixth Circuit has applied the requirements of the PLRA to hold that a prisoner who files a § 1983 claim involving prison conditions must allege and show that he has exhausted all available state administrative remedies. Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998) (per curiam). The court has further stated that when filing a civil complaint regarding prison conditions, "a prisoner must plead his claims with specificity and show that they have been exhausted by attaching a copy of the applicable administrative dispositions to the complaint or, in the absence of written documentation, describe with specificity the administrative proceeding and outcome." Knuckles-El v. Toombs, 215 F.3d 640, 642 (6th Cir. 2000). Failure to demonstrate exhaustion with the complaint at the time the complaint is filed will result in dismissal for failure to state a claim. Baxter v. Rose, 305 F.3d 486, 489 (6th Cir. 2002).
A claim of deliberate indifference to serious medical needs is a claim "brought with respect to prison conditions." See Cruz v. Jordan, 80 F. Supp.2d 109 (S.D.N.Y. 1999). See also Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 992 (2002)("[w]e hold that the 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") (finding that prisoner who filed suit under 42 U.S.C. § 1983 based on corrections officers' unprovoked assault was required to exhaust administrative remedies under 42 U.S.C. § 1997e(a) prior to filing suit).
The Michigan Department of Corrections has a three step grievance procedure wherein "[g]rievances may be submitted regarding alleged violations of policy or procedure or unsatisfactory conditions of confinement which directly affect the grievant." Michigan Department of Corrections Policy Directive No. 03.02.130. Plaintiff has not alleged that he has exhausted the three step grievance procedure. Consequently, the complaint shall be dismissed without prejudice because Plaintiff has failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a). Plaintiff may refile his claim after exhausting administrative remedies. See White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997).
Conclusion
Plaintiff's complaint is dismissed without prejudice for failure to exhaust administrative remedies as required by 42 U.S.C. § 1997e(a) and for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Therefore, Plaintiff's Motion for Summary Judgment is denied as moot. This Court certifies that any appeal by Plaintiff would be frivolous and not in good faith. 28 U.S.C. § 1915(a)(3). A judgment consistent with this opinion shall issue.