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Carbe v. Lappin

United States Court of Appeals, Fifth Circuit
Jul 5, 2007
492 F.3d 325 (5th Cir. 2007)

Summary

holding that "[u]nder Jones, . . . a court can dismiss a case prior to service on defendants for failure to state a claim, predicated on failure to exhaust, if the complaint itself makes clear that the prisoner failed to exhaust"

Summary of this case from Torns v. Mississippi Dept. of Corrections

Opinion

No. 06-40192 Summary Calendar.

July 5, 2007.

Milton Earl Carbe, Beaumont, TX, prose.

Appeal from the United States District Court for the Eastern District of Texas.

Before KING, HIGGINBOTHAM and GARZA, Circuit Judges.


Milton Carbe appeals the district court's dismissal without prejudice of his Bivens complaint for failure to exhaust administrative remedies. He alleged that he was subjected to unconstitutional conditions of confinement when the defendants ignored a mandatory evacuation order and left him and other inmates at the Beaumont prison during Hurricane Rita without, inter alia, adequate food, water, and ventilation. The court dismissed the complaint sua sponte prior to service on the defendants for failure to exhaust remedies. First there is a matter of jurisdiction and then we turn to the dismissal for want of exhaustion of remedies.

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

I

Carbe argues that because he claimed monetary damages and requested a jury trial the magistrate judge lacked jurisdiction. According to the magistrate judge's report and recommendation, the matter was referred to him by the district court for review, report, and recommendation in accordance with 28 U.S.C. § 636(b)(1)(B). The Supreme Court has interpreted § 636(b)(1)(B) "to authorize the nonconsensual reference of all prisoner petitions to a magistrate [judge]." The magistrate judge did not enter judgment pursuant to § 636(c), but only made "findings of fact" and "recommendations" pursuant to § 636(b)(1)(B) and did not exceed his statutory authority.

McCarthy v. Bronson, 500 U.S. 136, 139, 111 S.Ct. 1737, 114 L.Ed.2d 194 (1991) (emphasis in original).

II

Carbe argues that the district court erred in dismissing his complaint for failure to exhaust before a responsive pleading was filed. This court reviews a district court's dismissal of a prisoner's complaint for failure to exhaust de novo.

Powe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999).

The proper characterization under the Federal Rules of Civil Procedure of the Prison Litigation Reform Act's exhaustion requirement has been uncertain. The Supreme Court recently provided an answer in Jones v. Bock, holding that "failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their complaints." We had held that a district court may dismiss a complaint, sua sponte, for failure to exhaust.

See Johnson v. Johnson, 385 F.3d 503, 516 n. 7 (5th Cir.2004) (noting the debate but not deciding the question).

___ U.S., ___ 127 S.Ct. 910, 921, 166 L.Ed.2d 798 (2007).

See Wendell v. Asher, 162 F.3d 887, 889-90 (5th Cir.1998) (indicating that the district court dismissed for failure to exhaust without a motion from the defendants); Underwood v. Wilson, 151 F.3d 292, 292-93 (5th Cir. 1998) (same).

In PLRA cases, district courts in this circuit often hold "Spears hearings" to determine whether a case should be dismissed for various reasons before defendants are served. While Jones, in insisting upon a return to the regular pleading order in the handling of the affirmative defense of failure to exhaust, does not otherwise cast doubt upon Spears hearings, a practice extensively used in this circuit for over twenty years, it does make clear that a court cannot in a Spears hearing before a responsive pleading is filed resolve the question of exhaustion. Any failure to exhaust must be asserted by the defendant. Under Jones, however, a court can dismiss a case prior to service on defendants for failure to state a claim, predicated on failure to exhaust, if the complaint itself makes clear that the prisoner failed to exhaust. Here, however, Carbe's complaint is silent as to exhaustion.

See Spears v. McCotter, 766 F.2d 179 (5th Cir.1985).

See Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. Mar.5, 2007) ("Because [the prisoner's] complaint was silent as to whether he had exhausted his administrative remedies — which is acceptable under Jones — the district court erred in requesting [the prisoner] to supplement the record on that issue.").

See Jones, 127 S.Ct. at 920-21 (holding that courts can dismiss for failure to state a claim when the existence of an affirmative defense, like a statute of limitations bar, is apparent from the face of the complaint).

It bears emphasis that a district court cannot by local rule sidestep Jones by requiring prisoners to affirmatively plead exhaustion. It is, at least now it is, an affirmative defense under the Federal Rules, a defense belonging to the state that is waived if not asserted. To the extent decisions of this court have suggested otherwise, they did not survive Jones.

We must then VACATE the judgment and REMAND.


Summaries of

Carbe v. Lappin

United States Court of Appeals, Fifth Circuit
Jul 5, 2007
492 F.3d 325 (5th Cir. 2007)

holding that "[u]nder Jones, . . . a court can dismiss a case prior to service on defendants for failure to state a claim, predicated on failure to exhaust, if the complaint itself makes clear that the prisoner failed to exhaust"

Summary of this case from Torns v. Mississippi Dept. of Corrections

holding exhaustion is "a defense belonging to the state that is waived if not asserted"

Summary of this case from Brooks v. Powell

holding that "[u]nder Jones, ... a court can dismiss a case prior to service on defendants for failure to state a claim, predicated on failure to exhaust, if the complaint itself makes clear that the prisoner failed to exhaust"

Summary of this case from James v. Jackson

holding that a district court can dismiss a PLRA case on its own for failure to state a claim, predicated on failure to exhaust, if the complaint itself makes clear that the prisoner failed to exhaust his administrative remedies

Summary of this case from Wiley v. Ky. Dep't of Corr.

holding that a case under the PLRA can be dismissed sua sponte for failure to state a claim, predicated on failure to exhaust, if the complaint itself makes clear that the prisoner failed to exhaust his administrative remedies

Summary of this case from Turner v. Ives

holding that a case under the PLRA can be dismissed sua sponte for failure to state a claim, predicated on failure to exhaust, if the complaint itself makes clear that the prisoner failed to exhaust his administrative remedies

Summary of this case from Gross v. Jones

holding that a case under the PLRA can be dismissed sua sponte for failure to state a claim, predicated on failure to exhaust, if the complaint itself makes clear that the prisoner failed to exhaust his administrative remedies

Summary of this case from Tomlinson v. Holder

holding that a case under the PLRA can be dismissed sua sponte "for failure to state a claim, predicated on failure to exhaust, if the complaint itself makes clear that the prisoner failed to exhaust his administrative remedies

Summary of this case from Foster v. Moore

holding that a case under the PLRA can be dismissed sua sponte for failure to state a claim, predicated on failure to exhaust, if the complaint itself makes clear that the prisoner failed to exhaust his administrative remedies

Summary of this case from McKnight v. Holder

holding that a case governed by the PLRA can be dismissed sua sponte for failure to state a claim, predicated on failure to exhaust, if the complaint itself showed that the prisoner failed to exhaust his administrative remedies

Summary of this case from Muhammad v. Hickey

finding that complaint is subject to dismissal for failure to state a claim where failure to exhaust is apparent from the face of the complaint

Summary of this case from Miller v. Hall

finding that complaint is subject to dismissal for failure to state a claim where failure to exhaust is apparent from the face of the complaint

Summary of this case from Miller v. Cnty. of Choctaw

affirming sua sponte dismissal of a PLRA case for failure to state a claim predicated on failure to exhaust, where the complaint itself showed that the prisoner failed to exhaust his administrative remedies

Summary of this case from Kirkwood v. Ives

affirming sua sponte dismissal of a PLRA case sua sponte for failure to state a claim predicated on failure to exhaust, where the complaint itself showed that the prisoner failed to exhaust his administrative remedies

Summary of this case from Coleman v. Lappin

stating that a district court may dismiss a prisoner's complaint "for failure to state a claim, predicated on failure to exhaust"

Summary of this case from Herschberger v. Lumpkin

noting that in PLRA cases, "[a]ny failure to exhaust must be asserted by the defendant"

Summary of this case from Davis v. Fort Bend Cnty.

In Carbe, we stated that a "district court cannot by local rule sidestep Jones by requiring prisoners to affirmatively plead exhaustion."

Summary of this case from McGrew v. Brentgetsy

indicating that a court can dismiss a case if the complaint itself makes it clear that the prisoner failed to exhaust

Summary of this case from Jackson v. Gilley

noting that a dismissal for failure to state a claim predicated on a failure to exhaust is appropriate "if the complaint itself makes clear that the prisoner failed to exhaust"

Summary of this case from Harris v. Gusman

stating that a court "can only dismiss for failure to state a claim based on a failure to exhaust when the face of the complaint makes clear that the plaintiff did not exhaust." (footnote omitted)

Summary of this case from Phillips v. Tex. Dep't of Family & Protective Servs.

noting that, where a complaint made clear that the prisoner failed to exhaust administrative remedies, the district court may dismiss the complaint sua sponte for failure to state a claim

Summary of this case from Kenney v. Ormond

indicating that a court can dismiss a case if the complaint itself makes it clear that the prisoner failed to exhaust

Summary of this case from Riddick v. Ormond

noting that a dismissal for failure to state a claim predicated on a failure to exhaust is appropriate "if the complaint itself makes clear that the prisoner failed to exhaust"

Summary of this case from Parker v. Gusman

noting that a dismissal for failure to state a claim, predicated on a failure to exhaust, is appropriate "if the complaint itself makes clear that the prisoner failed to exhaust"

Summary of this case from Bryant v. Gusman

noting that a dismissal for failure to state a claim, predicated on a failure to exhaust, is appropriate "if the complaint itself makes clear that the prisoner failed to exhaust"

Summary of this case from Adams v. Edwards
Case details for

Carbe v. Lappin

Case Details

Full title:Milton CARBE, Plaintiff-Appellant, v. Harvey LAPPIN, Director of Federal…

Court:United States Court of Appeals, Fifth Circuit

Date published: Jul 5, 2007

Citations

492 F.3d 325 (5th Cir. 2007)

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