Jacobs v. Cain

Filing 10

REPORT AND RECOMMENDATIONS regarding 1 Complaint filed by Zzeundre Jacobs. It is recommended that this action be dismissed, without prejudice, as a result of the plaintiff's failure to exhaust administrative remedies as mandated by 42 U.S.C. § 1997e, but with prejudice to his refiling the same claim in forma pauperis, see Underwood v. Wilson, 151 F.3d 292 (5thCir. 1998). Objections to R&R due by 11/25/2009. Signed by Magistrate Judge Christine Noland on 11/10/09. (BP, )

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA ZZEUNDRE JACOBS (#447048) VERSUS WARDEN N. BURL CAIN NOTICE Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court. In accordance with 28 U.S.C. § 636(b)(1), you have ten (10) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 10 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court. ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT. Signed in chambers in Baton Rouge, Louisiana, November 10, 2009. NO. 09-0400-RET-CN CIVIL ACTION

MAGISTRATE JUDGE CHRISTINE NOLAND

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA ZZEUNDRE JACOBS (#447048) VERSUS WARDEN N. BURL CAIN NO. 09-0400-RET-CN CIVIL ACTION

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION The pro se plaintiff, an inmate incarcerated at the Louisiana State Penitentiary ("LSP"), Angola, Louisiana, filed this proceeding against Warden N. Burl Cain, purportedly as a motion for injunctive relief pursuant to 42 U.S.C. § 1983. The plaintiff complains that his

constitutional rights have been violated by the conditions of confinement to which he has been subjected at LSP, notably but not exclusively through overcrowding, poor ventilation, unsafe bunk beds, unsanitary conditions, exposure to second-hand tobacco smoke, deliberate medical indifference, cross-sex surveillance, and retaliation. In his original Complaint, filed on or about June 25, 2009, the plaintiff did not indicate whether he had commenced an administrative remedy procedure ("ARP") at LSP relative to the claims asserted herein. However, in an amended Complaint, filed on or about October 22, 2009, the plaintiff asserts that he filed an ARP relative to these claims on or about June 28, 2009, but has not received a response to this grievance. Pursuant to 28 U.S.C. § 1997e, the plaintiff was required to exhaust administrative commencing conditions.1 a remedies civil available in to him Court at the prison prior to to

action

this

with

respect

prison

This provision is mandatory and applies broadly to "all

42 U.S.C. § 1997e(a) provides that, "[n]o action shall be brought with respect to prison conditions under section 1983 of

1

suits about prison life". 152 L.ed.2d 12 (2002).

Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, Further, a prisoner must exhaust his

administrative remedies by complying with applicable prison grievance procedures. Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004). Not only

must the prisoner exhaust all available remedies, but such exhaustion must be proper, including compliance with an agency's deadlines and other critical procedural rules. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). Although administrative exhaustion is an

affirmative defense which a prisoner plaintiff is not required to plead or prove in his Complaint, Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007), where it is apparent from the face of the plaintiff's pleadings that he has failed to exhaust the prison grievance procedures, a dismissal sua sponte is appropriate for failure of the plaintiff to state a claim upon which relief may be granted. See Tanner See also

v. Federal Bureau of Prisons, 475 F.Supp.2d 103 (D.D.C. 2007). Clifford v. Louisiana, 2008 WL 2754737 (M.D. La. July 7, 2008).

In the instant case, the plaintiff has admitted in his Amended Complaint that he has not exhausted administrative remedies relative to the claims presented herein. Although he complains that prison officials "prolong" the administrative process in order to discourage the pursuit of administrative claims, the plaintiff fails to address the established procedure, recognized in the prison Rulebook, whereby an inmate who has not received a timely response to his grievance within a certain number of days may unilaterally proceed to the next step in the administrative process, thereby ultimately exhausting administrative remedies even

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."

without cooperation from prison officials.

The plaintiff makes no

suggestion that he utilized this procedure to complete administrative review of his claims in this case. Accordingly, because the affirmative

defense of exhaustion appears clear on the face of the plaintiff's pleadings, the plaintiff's Complaint is subject to dismissal, sua sponte, for failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e. RECOMMENDATION It is recommended that this action be dismissed, without prejudice, as a result of the plaintiff's failure to exhaust administrative remedies as mandated by 42 U.S.C. § 1997e, but with prejudice to his refiling the same claim in forma pauperis, see Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998). Signed in chambers in Baton Rouge, Louisiana, November 10, 2009.

MAGISTRATE JUDGE CHRISTINE NOLAND