Freeman v. Wallace et al

Filing 4

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion for an extension of time to file an amended complaint [Doc. #3] is DENIED, because he states he has not yet exhausted his prison grievances. IT IS FURTHER ORDERED that this actio n is DISMISSED, without prejudice, for plaintiff's failure to comply with the Court's Order of June 8, 2015, and for failure to exhaust the prison grievance system prior to filing this action. See Fed. R. Civ. P. 41(b); 42 U.S.C. ' 199 7e(a). IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in good faith. See 28 U.S.C. ' 1915(a)(3). A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Jean C. Hamilton on 7/14/2015. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
UEL JOE FREEMAN,
Plaintiff,
v.
IAN WALLACE, et al.,
Defendants.

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No. 1:15-CV-96-ACL

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff=s failure to comply with this
Court=s Order of June 8, 2015 [Doc. #2]. Plaintiff was ordered to file, within thirty
days, an amended complaint and either the $400 filing fee or a motion to proceed in
forma pauperis. In addition, the Court warned plaintiff that his failure to comply
with the Order would result in the dismissal of this action, without prejudice. To
date, plaintiff has failed to pay the $400 filing fee or a motion to proceed in forma
pauperis, and his time for doing so has expired.
Moreover, although plaintiff has filed a motion for an extension of time in
which to file an amended complaint [Doc. #3], in the motion, he admits he has not
yet exhausted his prison administrative grievances. Under the Prison Litigation
Reform Act, A[n]o 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).

Exhaustion is mandatory.

Porter v. Nussle, 534 U.S. 516, 524 (2002). Where, as in the instant case, it is
apparent from the face of the pleadings and motions that a plaintiff has not met the
applicable exhaustion requirements, a Court may properly dismiss an in forma
pauperis complaint prior to service. Cf. Smith v. Unknown Corrections Officer, 196
Fed.Appx. 451, 2006 WL 2620837 (8th Cir. 2006). As noted above, plaintiff
concedes that he did not exhaust his available administrative remedies before filing
the instant action. Therefore, his claims presently are barred by 42 U.S.C. '
1997e(a)
Therefore,
IT IS HEREBY ORDERED that plaintiff’s motion for an extension of time
to file an amended complaint [Doc. #3] is DENIED, because he states he has not yet
exhausted his prison grievances.
IT IS FURTHER ORDERED that this action is DISMISSED, without
prejudice, for plaintiff=s failure to comply with the Court=s Order of June 8, 2015,
and for failure to exhaust the prison grievance system prior to filing this action. See
Fed. R. Civ. P. 41(b); 42 U.S.C. ' 1997e(a).1

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This dismissal shall not count as a strike against plaintiff for purposes of 28
U.S.C. ' 1915(g).

IT IS HEREBY CERTIFIED that an appeal from this dismissal would not
be taken in good faith. See 28 U.S.C. ' 1915(a)(3).
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 14th day of July, 2015.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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