McGrew v. Getsy et al

Filing 13

REPORT AND RECOMMENDATIONS regarding 1 Complaint filed by Carlos A. McGrew...It is recommended that the plaintiff's complaint be dismissed without prejudice for failure to exhaust available administrative remedies pursuant to 42 U.S.C. 1997 (a), and with prejudice to refiling them in forma pauperis status.... Objections to R&R due by 1/25/2010. Signed by Magistrate Judge Stephen C. Riedlinger on 1/7/2010. (CMM,)

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

CARLOS A. MCGREW (#413135) VERSUS MAJ. STEVE BRENTGETSY, 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 14 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, January 7, 2010. CIVIL ACTION NUMBER 09-1022-RET-SCR

STEPHEN C. RIEDLINGER UNITED STATES MAGISTRATE JUDGE

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA CARLOS A. MCGREW (#413135) VERSUS MAJ. STEVE BRENTGETSY, ET AL CIVIL ACTION NUMBER 09-1022-RET-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 Maj. Steve Brentgetsy, Maj. James Tillman, Col. C. Honeycutt and Warden Joe Lemartiniere. Plaintiff alleged

that the defendants have harassed him in retaliation for refusing to withdraw an administrative grievance in violation of his

constitutional rights. 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). 2 Johnson v.

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, 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. 863, 866 (5th Cir. 2003). Days v. Johnson, 332 F.3d

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 claims Administrative Remedy Procedure LSP-2009-2032 regarding the raised in the complaint it was rejected1 because which the is Carbe v. Lappin, 492 F.3d 325, 328

administrative prohibited Procedure.2 by

grievance the

contained of

multiple the

claims

provisions

Administrative

Remedy

It is apparent of the face of the complaint that the plaintiff

1 2

Record document number 1, Complaint, p. 3, 11.

A copy of the rejection in LSP-2009-2032 was attached as an exhibit to the plaintiff's complaint. Id., p. 26. 3

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 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.3 Baton Rouge, Louisiana, January 7, 2010.

STEPHEN C. RIEDLINGER UNITED STATES MAGISTRATE JUDGE

3

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