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rejecting plaintiff's excuse that he failed to file step 2 grievance because he did not receive a response to his step 1 grievance, treating the excuse as a challenge to the adequacy of the TDCJ prison grievance process and determining that Fifth Circuit case law did not authorize such an inquiry
Summary of this case from Jefferson v. LoftinOpinion
3:04-CV-0767-K.
September 15, 2004
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 in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a civil rights complaint brought by a state inmate pursuant to 42 U.S.C. § 1983.
Parties: At the time of filing this action Plaintiff was confined at the Hutchins State Jail of the Texas Department of Criminal Justice — Correctional Institutions Division in Dallas, Texas. He is presently residing in Rowlett, Texas.
Defendants are Hutchins State Jail Warden T. Simpson, State Jail Division Director Nathaniel Quarterman, and the University of Texas Medical Branch. The court has not issued process in this case. However, on April 21, 2004, the Magistrate Judge issued a questionnaire to Plaintiff, who filed his answers on May 24, 2004. Statement of Case: The complaint alleges numerous violation of Plaintiff's constitutional rights related to the deplorable conditions of confinement at the Hutchins State Jail. (Complaint at 3-4 and handwritten attachment). He requests monetary compensation and any other relief which this court "deems necessary and appropriate." (Id. at 3). Findings and Conclusions: 42 U.S.C. § 1997e(a), as amended by the Prison Litigation Reform Act of 1996 (" PLRA"), provides as follows:
Shortly after the filing of the complaint, the magistrate granted Plaintiff leave to proceed in forma pauperis and directed TDCJ to collect the $150 filing fee in accordance with 28 U.S.C. § 1915(b). (See April 21, 2004 Filing Fee Order). On July 1, 2004, following his release from confinement, Plaintiff paid the $150 filing fee.
No action shall be brought with respect to prison conditions under § 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.
The Supreme Court has held that "the PLRA's exhaustion requirement 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, 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002). Even when the prisoner seeks relief not available in grievance proceedings, notably monetary damages, exhaustion is a prerequisite to suit. Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001). When a prisoner fails to exhaust his administrative remedies prior to filing suit, without a valid excuse, defendants are entitled to judgment as a matter of law dismissing the prisoner's complaint, but the dismissal must be without prejudice to refiling after exhausting his administrative remedies. Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998).
While Plaintiff is no longer incarcerated within TDCJ, at the time of filing this action he was confined in prison and as such he was subject to the administrative exhaustion requirement of § 1997e(a).
TDCJ currently provides a two-step procedure for presenting administrative grievances. Wendell, 162 F.3d at 891; see also Johnson v. Johnson, ___ F.3d ___, 2004 WL 1985441, *4 (5th Cir. Sept. 8, 2004). The Hutchins State Jail, which is part of TDCJ, follows the same two-step procedures.
In Wendell, the Fifth Circuit described the two-step procedure as follows:
Step 1 requires the prisoner to submit an administrative grievance at the institutional level. After an investigation, the unit grievance investigator prepares a report and makes a recommendation to the final decision maker for step 1 of the process, which may be the warden, assistant warden, facility administrator, assistant facility administrator, or health administrator. Step 2 permits the prisoner to submit an appeal to the division grievance investigation with the Institutional Division of the Texas Department of Criminal Justice. After an investigation, the department grievance investigator prepare a report and makes a recommendation to the final decision maker for step 2 of the process, which is the director, deputy director, regional director or assistant director.
The grievance procedures takes approximately 90 days to exhaust. Prisoners are allowed 15 calendar days to file a step 1 grievance. The response to the step 1 grievance is due within forty days after receipt of the grievance. The prisoner ten has 10 days to submit an appeal. The response to the step 2 grievance is due within forty days after receipt of the prisoner's appeal.Wendell, 162 F.3d at 891 (citations omitted).
In paragraph three of the civil rights complaint form, as well as in answer to the magistrate judge's questionnaire, Plaintiff concedes that he did not exhaust his administrative remedies before filing this suit. (See Complaint at 2 ¶ III, and Answer to Question 2 of the questionnaire). In the complaint he states "to [sic] many issues and some not grievable." (Complaint at 2 ¶ III). In answer to the questionnaire, he explains that he and other inmates filed step 1 "grievances about the leeches and maggots, recreation, conditions in the chow hall," but he "never received a step 1 grievance back." (Answer to Question 2). Plaintiff surmises the grievance officer "just thr[ew] them away," hence "[t]here was no point in filing a step 2 grievance because they never returned step 1 grievances." (Id.).
Liberally construing the above allegations, it is clear Plaintiff seeks to challenge the adequacy of TDCJ prison grievance process. The Fifth Circuit has held, however, that "it is not for the courts to inquire whether administrative procedures "satisfy `minimum acceptable standards' of fairness and effectiveness"; prisoners simply "must exhaust such administrative remedies as are available, whatever they may be."Alexander v. Tippah County, 351 F.3d 626, 630 (5th Cir. 2003) (citations and internal quotation marks omitted), cert. denied, 124 S.Ct. 2071, (2004).
The magistrate judge concludes Plaintiff has not raised a valid excuse for failing to exhaust his available administrative remedies while at the Hutchins State Jail. See Alexander, 351 F.3d at 630 (state prisoner's failure to pursue available administrative remedy precluded his § 1983 action alleging excessive use of force; notwithstanding his claim that facility's grievance procedures were inadequate; prisoner had opportunity to file grievance, but chose not to); Parker v. Adjetey, 89 Fed. Appx. 886, 887-888, 2004 WL 330866 (5th Cir. Feb. 20, 2004) (state inmate failed to exhaust administrative remedies prior to filing civil rights action; although inmate was not released from hospital until after the 15-day period for filing a timely grievance had expired, the inmate did not attempt to exhaust the administrative remedies that were personally available to him);see also Booth v. Churner, 532 U.S. 731, 741 n. 6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) ("we will not read futility or other exceptions into statutory exhaustion requirements"). Consequently, Plaintiff's complaint should be dismissed without prejudice. RECOMMENDATION:
In Johnson v. Johnson, 2004 WL 1985441 (5th Cir. Sept. 8, 2004), the Fifth Circuit recently stated that "prisoners need not continue to file grievances about the same issue." Id. at *8. Unlike Johnson, however, Plaintiff never even once exhausted his administrative remedies before filing this action — i.e., filed a step 1 grievance, which was followed by an appeal through the step 2 grievance process.
For the foregoing reasons, it is recommended that Plaintiff's complaint be dismissed without prejudice for failure to exhaust administrative remedies. See 42 U.S.C. § 1997e(a).
A copy of this recommendation will be mailed to Plaintiff Sean D. Womack, 9213 Fairmon Cr., Rowlett, Texas 75088.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.