Opinion
CIVIL ACTION NO. 3:02-CV-1664-R, CIVIL ACTION NO. 3.-02-CV-2476-R
March 28, 2003
ORDER
This Court's Order (entered November 20, 2002) consolidating 3:02-CV-2476-R ( McLeod v. Bowles, et al.) into 3:02-CV-1664-R ( Skelton v. Bowles, et al.) is hereby VACATED. The clerk of the Court is directed to reopen 3:02-CV-2476-R, to prepare certified copies of documents numbered 30-31 and 33-37 of the 3:02-CV-1664-R docket sheet, and to docket these documents in 3:02-CV-2476-R. A new scheduling order will be issued in 3:02-CV-2476-R.
It is so ORDERED.
ORDER
Now before this Court are the Findings, Conclusions and Recommendation of United States Magistrate Judge Wm. F. Sanderson, Jr. (the "Recommendation") (filed December 5, 2002) and Defendants Jim Bowles, Rita Moss, and Rene Funks' Objections thereto (the "Objections") (filed December 11, 2002). In light of recent Fifth Circuit caselaw and the subsequent pleadings filed in this action, this Court hereby DECLINES TO RULE on the Recommendation and Objections.Plaintiff's original complaint did not allege that he exhausted his administrative remedies as required under 42 U.S.C. § 1997(e). Dismissal without prejudice, and, if necessary, equitable tolling of the statute of limitations, are proper in prisoner cases in which a Plaintiff has failed to allege exhaustion of administrative remedies unless the Plaintiff "establishes some other valid basis for failing to comply with § 1997e(a)." Clifford v. Gibbs, 298 F.3d 328, 331-32 (5th Cir. 2002). See also. Days v. Johnson, — F.3d —, 2003 WL 369677, at *2 (5th Cir. Feb. 21, 2003) (noting that the Fifth Circuit "has taken a strict approach to the exhaustion requirement"); Wright v. Hollingsworth, 260 F.3d 357, 357-58 (5th Cir. 2001) (equitable tolling). Exceptions to the exhaustion requirement are rare. See, e.g., Days, 2003 WL 369677, at *3 (holding administrative remedies to be unavailable if an inmate is unable to timely file because of physical injury and the grievance system rejects that inmate's subsequent attempts to file as untimely); Ferrington v. Louisiana Dept. of Corrections, 315 F.3d 529, 532 (5th Cir. 2002) (rejecting a claim of exhaustion based on plaintiff's alleged blindness).
Recommendation, at 2 (filed December 5, 2002).
However, subsequent to the Recommendation, Plaintiff was granted leave to file, and did file an amended complaint. The amended complaint includes the following vague allegation relating to exhaustion of administrative remedies:
Defendant Bowles has not made administrative remedies available to Plaintiff, although Plaintiff has attempted to obtain redress in the jail for the complaints made herein on prison conditions to no avail.
Plaintiff's Amended Complaint, ¶ 5, at 2 (filed December 12, 2002).
Moreover, in the Recommendation, Judge Sanderson stated that dismissal of the case "would not be efficient," as two of the Defendants had not filed Motions to Dismiss and thus there was a possibility "that this case . . . would end up being tried twice — once as to Defendants Moss and Funk and a second time as to Defendant Bowles." Subsequent to the Recommendation, Defendants Rita Moss and Rene Funks have filed a Motion to Dismiss.
Recommendation, at 3.
The Motion to Dismiss filed by Rita Moss and Rene Funk did not contain any additional briefing; instead, it adopted, in its entirety, the Motion to Dismiss filed by Jim Bowles. Motion to Dismiss and Brief in Support of Defendants Rita Moss, M.D. and Rene Funk, R.N., at 1-2 (filed December 11, 2002).
In light of these subsequent pleadings as well as recent Fifth Circuit caselaw, this Court again REFERS this case to United States Magistrate Judge Wm. F. Sanderson, Jr. for hearing, if necessary, report, and recommendation. See 28 U.S.C. § 636(b). Future pleadings concerning this case shall be filed with a transmittal letter addressed to Magistrate Judge Sanderson so copies may be sent directly to him without delay.
In addition, Defendants' Unopposed Motion to Vacate Scheduling Order (filed January 16, 2003) is GRANTED; the Scheduling Order (entered September 26, 2002) is hereby VACATED.