Opinion
No. 1:10-0104.
April 27, 2011
ORDER
On January 31, 2011, three of the defendants (Qualls, Paschall and Sims) filed a Motion to Dismiss (Docket Entry No. 30), claiming that the prisoner plaintiff had failed to exhaust his administrative remedies prior to filing this action as required by the Prison Litigation Reform Act. The plaintiff filed nothing in response to the defendants' Motion.
Presently pending is a Report and Recommendation (Docket Entry No. 33) from the Magistrate Judge in which he urges the Court to grant the defendants' Motion and dismiss all claims against these defendants and a fellow defendant, Jay Dickson. Also before the Court is the plaintiff's timely objections (Docket Entry No. 39) to the Report and Recommendation.
A prisoner may not bring any suit with respect to prison conditions "until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). In the complaint, the plaintiff admits that he did not file a grievance challenging the circumstances that form the basis for the claims against Qualls, Paschall, Sims and Dickson. Docket Entry No. 1 at pg. 3. In his objections, the plaintiff asserts that his claims against these defendants involve a disciplinary matter, and disciplinary matters can not be resolved through the grievance process. While this may be true, the plaintiff would then be expected to exhaust his claims against these defendants through the disciplinary process rather than through the grievances process. He has neglected to plead that he exhausted his claims against these defendants through the disciplinary process.
As a consequence, the plaintiff's objections are OVERRULED. The Report and Recommendation is ADOPTED AND APPROVED in all respects. Defendants' Motion to Dismiss is GRANTED and all claims against the defendants, Qualls, Paschall, Sims and Dickson are hereby DISMISSED without prejudice.
It is so ORDERED.