Austin v. Cotton et al
ORDER ADOPTING 85 REPORT AND RECOMMENDATIONS and Dismissing Plaintiff's case With Prejudice. Signed by Honorable Jimm Larry Hendren on August 1, 2012. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
Civil No. 09-5278
DEPUTY COTTON; SHERIFF KEITH FERGUSON;
CAPTAIN HOLLY; SERGEANT NANCE;
CORPORAL JOHNSTON; SERGEANT TORRES;
STAFF SERGEANT VAUGHN; CORPORAL WEST;
DEPUTY ACOSTA; and DEPUTY CRANE
O R D E R
Before the Court is the Report and Recommendation of the
Magistrate Judge (document #85) and plaintiff’s objections thereto
(document #86). The Court has reviewed both documents and, being
well and sufficiently advised, finds and orders as follows:
U.S.C. § 1983 in which plaintiff proceeds pro se and in forma
pauperis. Plaintiff alleges excessive use of force by officers at
the Benton County Detention Center during his incarceration at
plaintiff never filed a grievance related to any allegation of
excessive force, although some of the other inmates apparently
filed grievances stating that they had seen excessive force used
against plaintiff. Plaintiff is now incarcerated at the Delta
Regional Unit of the Arkansas Department of Correction.
three objections to
administrative remedies. First, he argues that, even if he had
filed a grievance for excessive use of force, he did not believe
it would have done any good.
It is well settled that the Prison Litigation Reform Act
(PLRA) requires inmates to exhaust all administrative remedies
before bringing a civil-rights claim under § 1983. Lyon v. Vande
Krol, 305 F.3d 806, 808 (8th Circ. 2002). This is so even if the
inmate subjectively believes that pursuing administrative remedies
Plaintiff next contends that the court should have
brought his failure to exhaust administrative remedies to his
The Court has no obligation to act as counsel or paralegal to
a pro se litigant, even one who is incarcerated. Pliler v. Ford,
542 U.S. 225, 231 (2004). By the same token, the Court cannot
clients. See Day v. McDonough, 547 U.S. 198, 210 (2006). Requiring
the Court to advise a litigant in such a manner would undermine
the Court’s role as an impartial decision maker. Pliler, 542 U.S.
at 231. Further, failure to exhaust administrative remedies is an
affirmative defense, and it is the burden of the defendant to
raise it. Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir. 2001).
While the issue might have been dealt with sooner to avoid
unnecessary litigation, the Magistrate Judge committed no error by
not advising plaintiff of his need to exhaust his administrative
remedies. Therefore, this objection is likewise overruled.
plaintiff should have been sufficient to exhaust plaintiff’s
Woodford v. Ngo, 548 U.S. 81, 91 (2006), the Supreme
Court concluded that “exhaustion” of administrative remedies under
the PLRA means “proper exhaustion.” The Court has found no case
law to support plaintiff’s contention that grievances filed by
third parties may satisfy this requirement. To the contrary,
several courts have found that the PLRA does not allow for
“substantial compliance” with the exhaustion requirement. See,
Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1112
(10th Cir. 2007) (“To exhaust administrative remedies an inmate
compliance is insufficient.”);
Lewis v. Washington, 300 F.3d 829, 834 (7th Cir. 2002)
(“[C]ourts have applied the substantial compliance doctrine only
to pre-PLRA causes of action to avoid the injustice of requiring
exhaustion of remedies that were not required to be exhausted at
the time of the alleged conduct.”); and
Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir.
2001) (“Nothing in the Prison Litigation Reform Act, however,
prescribes appropriate grievance procedures or enables judges, by
creative interpretation of the exhaustion doctrine, to prescribe
or oversee prison grievance systems.”).
Because plaintiff did not properly exhaust his administrative
remedies, this objection is overruled.
IT IS THEREFORE ORDERED that the Report and Recommendation of
the Magistrate Judge (document #85) is adopted in toto, and
plaintiff’s objections (document #86) are overruled.
IT IS FURTHER ORDERED that, for the reasons stated in the
Report and Recommendation, this action is dismissed with prejudice
due to plaintiff’s failure to exhaust administrative remedies
available to him during his confinement in the Benton County
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE
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