Edwards v. Cain et al

Filing 10

REPORT AND RECOMMENDATIONS regarding 1 Complaint filed by Gerard C. Edwards...It is recommended that the complaint be dismissed without prejudice for failure to exhaust available administrative remedies pursuant to 42 U.S.C. 1997e (a), and with prejudice to refiling them in forma pauperis status... Objections to R&R due by 10/21/2009. Signed by Magistrate Judge Stephen C. Riedlinger on 10/6/2009. (CMM, )

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

GERARD C. EDWARDS (#94155) VERSUS N. BURL CAIN, ET AL NOTICE Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U. S. District Court. In accordance with 28 U.S.C. § 636(b)(1), you have ten days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within ten 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 accepted by the District Court. ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT. Baton Rouge, Louisiana, October 6, 2009. CIVIL ACTION NUMBER 09-621-JVP-SCR

STEPHEN C. RIEDLINGER UNITED STATES MAGISTRATE JUDGE

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA GERARD C. EDWARDS (#94155) VERSUS N. BURL CAIN, ET AL CIVIL ACTION NUMBER 09-621-JVP-SCR MAGISTRATE JUDGE'S REPORT Pro se plaintiff, an inmate confined at Louisiana State Penitentiary, Angola, Louisiana, filed this action pursuant to 42 U.S.C. § 1983 against Warden N. Burl Cain, Assistant Warden Troy Poret, Col. Sharp and Maj. Richardson. Plaintiff alleged that he

was assigned him to a top bunk in violation of his medical duty status. Subsection (c)(1) of 42 U.S.C. § 1997e provides the following: (c) Dismissal.--(1) The court shall on its own motion or on the motion of a party dismiss any action 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 if the court is satisfied that the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. The court must accept as true the plaintiff's allegations and may not dismiss the complaint for failure to state a claim unless it appears beyond doubt that the plaintiff cannot prove any set of facts in support of his claim which would entitle him to relief. Boudeloche v. Grow Chemical Coatings Corp., 728 F. 2d 759 (5th Cir.

1984). In an action proceeding under § 1915, this court may consider, sua sponte, affirmative defenses that are apparent from the record even where they have not been addressed or raised by the parties. Ali v. Higgs, 892 F.2d 438 (5th Cir. 1990). Section 1997e of Title 42 of the United States Code provides in pertinent part as follows: (a) Applicability of Administrative Remedies.--No 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. Under 42 U.S.C. § 1997e(a), a prisoner must exhaust available administrative remedies before filing a § 1983 suit and is

precluded from filing suit while the administrative complaint is pending. Clifford v. Gibbs, 298 F.3d 328, 332 (5th Cir. 2002);

Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir. 1998), abrogated in part by Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910 (2007) (abrogating the holding that a district court may dismiss a civil complaint sua sponte for failure to exhaust); Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998); Harris v. Hegmann, 198 F.3d 153, 157 (5th Cir. 1999). A prisoner must exhaust his administrative

remedies by complying with applicable prison grievance procedures before filing a suit related to prison conditions. Johnson, 385 F.3d 503, 514 (5th Cir. 2004). Johnson v.

Not only must the

prisoner exhaust all available remedies, but such exhaustion must 2

be proper, including compliance with an agency's deadlines and other critical procedural rules. Woodford v. Ngo, 548 U.S. 81, 90, 126 S.Ct. 2378, 2386 (2006). Because § 1997e(a) expressly requires exhaustion, prisoners may not deliberately bypass the

administrative process by flouting an agency's procedural rules. Id., 126 S.Ct. at 2389-90. The § 1997e(a) exhaustion requirement

is mandatory, irrespective of the forms of relief sought and offered through administrative avenues. Days v. Johnson, 332 F.3d 863, 866 (5th Cir. 2003). A court can dismiss a case prior to

service on defendants for failure to state a claim, predicated on failure to exhaust, if the complaint itself makes clear that the prisoner failed to exhaust. (5th Cir. 2007). In his complaint, the plaintiff conceded that although he filed Administrative Remedy Procedure LSP-2009-1743 regarding the Carbe v. Lappin, 492 F.3d 325, 328

claims raised in the complaint he has not yet received a response to his administrative grievance.1 It is apparent of the face of the complaint that the plaintiff failed to exhaust available administrative remedies regarding the claims raised in the complaint prior to filing suit as required by 42 U.S.C. § 1997e(a). RECOMMENDATION It is the recommendation of the magistrate judge that the
1

Complaint, p. 3. 3

plaintiff's complaint be dismissed without prejudice for failure to exhaust available administrative remedies pursuant to 42 U.S.C. § 1997e(a), and with prejudice to refiling them in forma pauperis status.2 Baton Rouge, Louisiana, October 6, 2009.

STEPHEN C. RIEDLINGER UNITED STATES MAGISTRATE JUDGE

2

Underwood v. Wilson, 151 F.3d at 296. 4