Opinion
Civil Action No. 3:01-CV-1585-G
December 20, 2002
MEMORANDUM ORDER
Before the court is the motion of the defendants Wayne Scott ("Scott"), Tom Baker ("Baker"), and Allen Polunsky ("Polunsky") (collectively, "the defendants") to dismiss this case for failure to exhaust administrative remedies. For the reasons discussed below, the motion is granted.
I. BACKGROUND
On August 15, 2001, the pro se plaintiff Windell Eugene Henry ("Henry"), presently incarcerated by the Texas Department of Criminal Justice, filed a civil rights complaint under 42 U.S.C. § 1983. Complaint under § 1983 ("Complaint"). Henry alleges that the defendants denied him access to the courts in violation of certain constitutional rights. See id. at 2-3. The defendants answered the allegations and asserted affirmative defenses. Defendants' [Amended] Answer, Affirmative Defenses and Jury Demand ("Answer") ¶¶ 1-21. The defendants now move to dismiss the complaint on the ground that Henry failed to exhaust his administrative remedies. Defendants' Motion to Dismiss for Failure to Exhaust Administrative Remedies ("Motion") at 6.
II. ANALYSIS
A prisoner must exhaust all available administrative remedies before bringing suit under 42 U.S.C. § 1983. See Wright v. Hollingsworth, 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). The Prison Litigation Reform Act of 1995 ("PLRA") provides that
[n]o 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. § 1997e(a) (2002). Justice Ginsburg, writing for the Supreme Court, 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," that suit must be dismissed without prejudice. Wendell v. Asher, 162 F.3d 887, 890-891 (5th Cir. 1998).
The Texas Department of Criminal Justice provides a two-step process for filing administrative grievances. Id. at 891 (outlining the 90 day grievance process). Here, Henry has provided no proof that he has exhausted or, indeed even availed himself of, this administrative grievance process. See Plaintiff's Response to Defendants' Motion to Dismiss for Failure to Exhaust Administrative Remedies ("Response") at 1-3. Moreover, Henry has not offered a valid excuse for his failure to pursue his grievance administratively. Id; see also Booth v. C.O. Churner, 532 U.S. 731, 741 (2001) (noting that the PLRA exhaustion prerequisite applies even when the relief sought is unavailable through administrative procedures). Accordingly, Henry's complaint is dismissed without prejudice to refiling once his administrative remedies have been exhausted.
III. CONCLUSION
For the reasons discussed above, the motion of the defendants to dismiss this case for failure to exhaust administrative remedies is GRANTED.