Opinion
3:03-CV-051-H
February 12, 2003
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 District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge follow:
FINDINGS AND CONCLUSIONS I. Parties
Plaintiff is an inmate confined at the Big Spring Correctional Center. He brings this suit pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). He is proceeding pro se, and the Court has granted him permission to proceed in forma pauperis. Defendant is Warden Sam Pratt. No process has issued in this case.
A Bivens actions is analogous to an action for civil rights violations under 42 U.S.C. § 1983. The only difference is that Bivens applies to constitutional violations by federal, rather than state officials. See Abate v. Southern Pac. Transp. Co., 993 F.2d 107, 110 n. 14 (5th Cir. 1993). Therefore, to establish a Bivens Claim, a plaintiff must satisfy the requirements under § 1983.
II. Background
Petitioner states he was working as a machine operator at the Federal Detention Center in Seagoville, Texas, when he injured his back by attempting to lift a 30 pound box. Plaintiff seeks monetary damages. Plaintiff states that he has not exhausted the prison's administrative procedures regarding his claims. (Compl. p. 3).
III. Discussion
A prisoner must exhaust all available administrative remedies before bringing suit under 42 U.S.C. § 1983. See Wright v. Hollingworth, 260 F.3d 357, 358 (5th Cir. 2001) (holding that merely filing a grievance without further action does not demonstrate exhaustion of administrative remedies as contemplated by the Prison Litigation Reform Act of 1995 ("PLRA")). The PLRA provides that:
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. § 1997 (e)(a) (2002). Further, the Supreme Court has made clear that this exhaustion requirement under the PLRA "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." Porter v. Nussle, 534 U.S. 516, 532 (2002). When a prisoner files suit, "[a]bsent a valid defense to the exhaustion requirement," the suit must be dismissed without prejudice. Wendell v. Asher, 162 F.3d 887, 890-91 (5th Cir. 1998).
In this case, Plaintiff admits that he has not exhausted the prison's grievance procedures regarding his claims. See Compl. p. 13. Petitioner also includes a December 18, 2002, letter from Bureau of Prisons informing Petitioner that he has not exhausted his administrative procedures. See Exhibits to Compl. Plaintiff has not provided any valid reason for failing to pursue the administrative grievance procedures. See Booth v. C.O. Churner, 532 U.S. 731, 741 (2001) (noting that the PLRA exhaustion prerequisite applies even where the relief sought is unavailable through administrative procedures). Accordingly, Plaintiff's complaint should be dismissed without prejudice to refiling once his administrative remedies have been exhausted.
RECOMMENDATION
The Court recommends that Plaintiff's Complaint be dismissed without prejudice for failure to exhaust administrative remedies.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions and recommendation on Plaintiff by mailing a copy to him by United States Mail. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A part's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).