Opinion
CIVIL ACTION NO. 5:01-CV-322C
May 14, 2002
ORDER
On December 7, 2001, Plaintiff Ricky Wayne Turner, acting pro se, filed a complaint pursuant to 42 U.S.C. § 1983, complaining that employees of the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID"), Montford Unit were deliberately indifferent to his serious medical needs, used excessive force, and denied him due process during a disciplinary proceeding. Plaintiff was allowed to proceed in forma pauperis.
"Title 42 U.S.C.A. § 1997e requires that a state prisoner exhaust available administrative remedies prior to filing suit in federal district court under 42 U.S.C.A. § 1983." Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998). Section 1997e specifically 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.A. § 1997e (Supp. 2000). The Supreme Court has determined that § 1997e mandates exhaustion of administrative remedies "irrespective of the forms of relief sought and offered through [the] administrative avenues." Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001). This exhaustion requirement, however, "is not jurisdictional and may be subject to certain defenses such as waiver, estoppel or equitable tolling." Wright v. Hollingsworth, 260 F.3d 357, 358 n. 2 (5th Cir. 2001) (citing Underwood v. Wilson, 151 F.3d 292, 294-95 (5th Cir. 1998)).
Plaintiff filed his complaint on the § 1983 form approved by the United States District Court for the Northern District of Texas and in Section III, Exhaustion of Grievance Procedures, he stated that he had filed a Step I Grievance and "an appeal to the disciplinary case was rejected." The United States Magistrate Judge subsequently ordered the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID") to provide "authenticated and verified" copies of Plaintiffs medical, grievance, classification, and disciplinary records pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978). See Parker v. Carpenter, 978 F.2d 190, 191-92 n. 2 (5th Cir. 1992) (citing Martinez with approval).
This Court has examined the TDCJ-ID records and finds that there is no record of Plaintiff filing a Step 2 Grievance regarding the denial of medical care and due process from his disciplinary proceeding on June 9, 2000, at the TDCJ-ID Montford Unit. Moreover, in response to the Magistrate Judge's Order to Show Cause dated March 27, 2002, Plaintiff explains that he filed the Step 1 Grievance "six (6) days later . . . due to . . . taking 250 mg. of Elavil, a psychotropic drug." He does not explain why he failed to file a Step 2 Grievance and appeal from the rejection of his Step 1. See Powe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999) ("The Texas Department of Criminal Justice currently provides for a two-step procedure for presenting administrative grievances.").
This Court finds that Plaintiff has failed to exhaust the TDCJ-ID administrative grievance procedures or show good cause for failing to exhaust said procedures. See Wright v. Hollingsworth, 260 F.3d at 358 (holding that a TDCJ inmate failed to exhaust the available remedies when he failed to file a Step 2 grievance). See also Burnett v. Robertson, 2001 WL 1577495, at *2 (N.D. Tex. Dec. 7, 2001) (finding that inmate on prescription medication failed to provide valid excuse for failure to exhaust two-step administrative procedures where he did not specify how long he was on medication or explain when he was transferred to the cell where he was assaulted).
It is, therefore, ORDERED that Plaintiff's complaint is dismissed without prejudice pending exhaustion of the TDCJ-ID administrative grievance process.
Judgment shall be entered accordingly.
All pending motions are hereby denied.
Plaintiff is advised that if he appeals this Order, he will be required to pay the appeal fee of $105.00 pursuant to the PLRA, and he must submit an application to proceed in forma pauperis and a 6-month Certificate of Inmate Trust Account at the same time he files his notice of appeal.