David v. Mississippi Department of Corrections et al
MEMORANDUM OPINION. Signed by Senior Judge Neal B. Biggers on 2/18/15. (cr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
LOUIS DAVID BROWN
OF CORRECTIONS, ET AL.
This matter comes before the court, sua sponte, for consideration of dismissal for failure to
exhaust administrative remedies. In his pro se prisoner complaint, plaintiff Louis David Brown
challenges the conditions of his confinement under 42 U.S.C. § 1983. For the purposes of the Prison
Litigation Reform Act, the court notes that the plaintiff was incarcerated when he filed this suit. For
the reasons set forth below, the instant case will be dismissed for failure to exhaust administrative
Exhaustion of Administrative Remedies
Although exhaustion of administrative remedies is an affirmative defense, normally to be pled
by a defendant, the court may dismiss a pro se prisoner case if failure to exhaust is apparent on the
face of the complaint. Carbe v. Lappin, 492 F.3d 325 (5th Cir. 2007). The Prison Litigation Reform
Act states, in pertinent part:
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.
42 U.S.C. § 1997e(a). The administrative remedy program (“ARP”) in place at the Mississippi
Department of Corrections (“MDOC”) facilities has been approved by this court in Gates v. Collier,
GC 71-6-S-D (N.D. Miss. 1971) (order dated February 15, 1994). A district court may dismiss a
lawsuit if the plaintiff fails to complete the ARP. Underwood v. Wilson, 151 F.3d 292, 293 (5th Cir.
1998), cert. denied, 119 S. Ct. 1809, 143 L. Ed. 2d 1012 (1999) (quoting Rocky v. Vittorie, 813 F.2d
734, 736 (5th Cir. 1987)). While the exhaustion requirement is not jurisdictional, id. at 293-95,
“[a]bsent a valid defense to the exhaustion requirement, the statutory requirement enacted by
Congress that administrative remedies must be exhausted before the filing of suit should be imposed.”
Wendell v. Asher, 162 F.3d 877, 890-91 (5th Cir. 1998) (emphasis added); Smith v. Stubble field, 30
F.Supp. 2d 1168, 1170 (E.D. Mo. 1998). “To hold otherwise would encourage premature filing by
potential litigants, thus undermining Congress’ purpose in passing the PLRA, which was to provide
the federal courts some relief from frivolous prisoner litigation.” Wendell, 162 F.3d at 981 (citations
In this case, the plaintiff filed suit on December 20, 2013; however, he did not complete the
Administrative Remedy Program process until June 24, 2014. As he did not complete the
Administrative Remedy Program process before filing suit, under Wendell, supra, the instant case
must be dismissed for failure to exhaust administrative remedies, but without prejudice to the
plaintiff’s ability to file a second suit based upon the events in the case now that he has fully exhausted
the grievance process. A final judgment consistent with this memorandum opinion will issue today.
SO ORDERED this, the 18th day of February, 2015.
/s/ Neal Biggers
NEAL B. BIGGERS
SENIOR U. S. DISTRICT JUDGE
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