Opinion
Civil Action No. 08-cv-00148-BNB.
April 18, 2008
ORDER
Plaintiff, Chinou Vue, is in the custody of the Colorado Department of Corrections and currently is incarcerated at the Colorado Territorial Correctional Facility in Canon City, Colorado. Mr. Vue initiated this action by filing a pro se Prisoner Complaint and a Motion to proceed pursuant to 28 U.S.C. § 1915. On March 4, 2008, the Court granted Plaintiff's Motion to proceed pursuant to § 1915 and directed him to pay an initial partial filing fee of $37.00, which he did on March 14, 2008. The Court then reviewed the merits of Mr. Vue's claims and instructed him to file an Amended Complaint that alleges how each named defendant personally participated in the asserted constitutional violations.
Rather than filing an Amended Complaint, Mr. Vue filed a "Motion for Temporary Stay and Limited Remand," on April 15, 2008. In the Motion, Mr. Vue requests that the Court stay the action for five months and remand the action to the "administrative agency" so that he may file the appropriate grievances in the Broomfield County Jail. (Mot. at 1.) For the following reasons the Motion will be denied.
First, this Court is without authority to remand this action to a state or local administrative agency, which in this case is the Broomfield County Jail. Second, consistent with Jones v. Bock, 127 S. Ct. 910 (2007), an exhaustion requirement is an affirmative defense under the PLRA, and an inmate is not required to specially plead or demonstrate exhaustion in his civil rights complaint. Id. at 921. Plaintiff asserts in the Complaint that he no longer is housed at the Broomfield County Jail and that he is not able to exhaust his remedies. Whether Plaintiff has properly exhausted his administrative remedies regarding the claims he raises is subject to an affirmative defense which be raised by Defendants after this Court conducts an initial review of the merits of Plaintiff's and directs Defendants to respond.
Therefore, Plaintiff's Motion for a stay of the action so that he may exhaust his administrative remedies at the Broomfield County Jail will be denied as unnecessary. To the extent that Plaintiff requests, in the alternative, an evidentiary hearing to discuss the merits of his claims the request will be denied as premature. Accordingly, it is
ORDERED that the "Motion for Temporary Stay and Limited Remand," (Doc. No. 8), filed April 15, 2008, is DENIED as unnecessary. It is
FURTHER ORDERED that Mr. Vue's request for an evidentiary hearing is DENIED as premature. It is
FURTHER ORDERED that Mr. Vue shall have an additional thirty days from the date of the instant Order in which to comply with the Court's March 21, 2008, Order. It is
FURTHER ORDERED that if Mr. Vue fails to comply within the time allowed the Complaint and action will be dismissed without further notice.