Pitts v. Cain et al

Filing 5

RULING dismissing 1 Complaint filed by Kevin Lamar Pitts without prejudice for failure to exhaust available administrative remedies pursuant to 42 U.S.C. § 1997e(a), and with prejudice to refiling the complaint in forma pauperis. Signed by Chief Judge Brian A. Jackson on 08/08/2012. (KDC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

KEVIN LAMAR PITTS (#329150)
VERSUS

CIVIL ACTION

N. BURL CAIN, ET AL

NUMBER 12-373-BAJ-SCR
RULING

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, Asst. Warden D. Vannoy, Asst. Warden K. Benjamin, Asst. Warden T. Poret,
Asst. Warden C. Menzina, Asst. Warden O. Lamartinere, Col. D. Voohries, Maj. W.
Robinson, Capt. J. Dauzat and Msgt. R. Childs. Plaintiff alleged that he was issued
a false disciplinary report, was threatened and subjected to an excessive use of
force and denial of adequate medical treatment in violation of his constitutional
rights.
Specifically, the plaintiff alleged that on April 21, 26 and May 6 and 15, 2012,
he was threatened and subjected to multiple searches by Capt. Dauzat.
Plaintiff alleged that on May 15, 2012, he filed Administrative Remedy
Procedure (“ARP”) LSP-2012-1647. Plaintiff alleged that on May 24, 2012, Capt.
Dauzat searched his person and property and told him that he would face more
trouble if he did not withdraw the ARP. Plaintiff alleged that two hours later, Capt.

Dauzat restrained him and brought him on the walk to question him. Plaintiff alleged
that Capt. Dauzat became upset and choked him until he fainted. Plaintiff alleged
that when he regained consciousness he was examined by an emergency medical
technician.
Plaintiff alleged that on May 25, 2012, he completed a medical request form
seeking treatment for complaints of pain in his ankle, neck and elbow. Plaintiff
alleged that his request form was given to a supervisor because he had complained
that he was harmed by a security officer.
Plaintiff alleged that on June 10, 2012, he was escorted to the prison infirmary
where x-rays were taken. Plaintiff alleged that he was advised that there was
nothing wrong with him.
Plaintiff alleged that on June 12, 2012, he told Warden Vannoy that security
officers were retaliating against him and that he suffered a chipped bone in his elbow
and needed x-rays of his shoulder and ankle. Plaintiff alleged that on June 13, 2012,
Warden Vannoy sent him to the prison infirmary. Plaintiff alleged that Warden
Vannoy ordered Warden Lamartinere, Warden Menzina and Col. Voohries to
conduct an investigation. Plaintiff alleged that instead of conducting an investigation,
the three prison officials told him to drop the ARP because he was making enemies.
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
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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
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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 v. Johnson, 385 F.3d 503, 514 (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, 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. Carbe v.
Lappin, 492 F.3d 325, 328 (5th Cir. 2007).
Plaintiff alleged in his complaint that he filed two administrative grievances
regarding the claims raised in the complaint but he has not yet exhausted the two
administrative grievances.1 Plaintiff attached as exhibits to the complaint the two

1

Record document number 1-1, p. 2.
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ARPs he filed with prison officials.2 The first ARP was received by prison officials
on May 30, 2012 and was assigned as ARP 12-1647. The second ARP was
submitted on June 20, 2012, but has apparently not yet been accepted into the two
step procedure.
In accordance with the Adult Administrative Remedy Procedures, an inmate
commences the process by writing a letter to the warden in which he briefly sets out
the basis for his claim and the relief sought. La. Admin. Code tit. 22, pt. I §
325(G)(1)(a). The request shall be screened by the ARP screening officer and a
notice will be sent to the inmate advising that his request is being processed or is
rejected. Id. The warden shall respond to the inmate within 40 days from the date
the request is received at the first step. Id. An inmate who is dissatisfied with the
first step response may appeal to the secretary of the Department of Public Safety
and Corrections by so indicating in the appropriate space on the response form and
forwarding it to the ARP screening officer within 5 days of receipt of the decision.
Id. at § 325(G)(2)(a). A final decision will be made by the secretary and the inmate
will be notified within 45 days of receipt. Id.
Under the Fifth Circuit’s strict approach to the Prison Litigation Reform Act’s
exhaustion requirement, mere “substantial compliance” with administrative remedy
procedures does not satisfy exhaustion. See Wright v. Hollingsworth, 260 F.3d 357,
358 (5th Cir. 2001).
2

Record document number 1-2, pp. 3-10.
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Plaintiff acknowledged on the face of the complaint that he has not yet
exhausted the two ARPs. At the time the plaintiff filed his complaint on July 3, 2012,
there had not been sufficient time to exhaust available administrative remedies
through the two step process on either ARP.
It is apparent on 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).
Plaintiff’s complaint shall be dismissed without prejudice for failure to exhaust
available administrative remedies pursuant to 42 U.S.C. § 1997e(a), and with
prejudice to refiling the complaint in forma pauperis.3
Judgment shall be entered accordingly.
Baton Rouge, Louisiana, August 8, 2012.

BRIAN A. JACKSON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

3

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