Hinderman v. Sancegraw et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff shall show cause in writing and within twenty-one (21) days of the date of this order why defendant's motion should not be granted, and this case dismissed, due to plaintiffs failure to properly exhaust administrative remedies. IT IS FURTHER ORDERED that if plaintiff fails to comply with this order, his claim against defendant Kyle Smith will be dismissed. Show Cause Response due by 10/29/2019. Signed by District Judge Stephen N. Limbaugh, Jr on 10/8/19. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
FRANCIS B. SANCEGRA W, et al. ,
MEMORANDUM AND ORDER
This matter is before the Court on the motion of defendant Kyle Smith to dismiss this case
pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. (Docket No. 9). Defendant argues
that plaintiff has not exhausted his administrative remedies because the grievance he filed while at
the Potosi Correctional Center (PCC) was untimely. For the reasons discussed below, plaintiff will
be given twenty-one (21) days to show cause why his case should not be dismissed for failure to
Plaintiff is a pro se litigant. At all relevant times, he was incarcerated at PCC. On May 3,
2019, plaintiff filed a civil action pursuant to 42 U.S.C. § 1983 claiming that defendant failed to
intervene when excessive force was used against him. The incident allegedly took place on January
15, 2018. On July 30, 2019, the Court directed the Clerk of Court to issue process on defendant.
The instant motion was filed on September 30, 2019.
Defendant moves to dismiss plaintiffs case on the basis of plaintiffs failure to exhaust
administrative remedies. The Prison Litigation Reform Act (PLRA) provides that a prisoner cannot
bring an action under 42 U.S.C. § 1983 without first exhausting available administrative remedies.
See 42 U.S.C. § 1997e(a). Under the PLRA, exhaustion is mandatory and is a prerequisite to
bringing a federal suit. Porter v. Nuss le, 534 U.S. 516, 524 (2002). This is true regardless of the
relief offered by administrative procedures. Booth v. Churner, 532 U.S. 731 , 741 (2001).
Moreover, the exhaustion requirement requires proper exhaustion, which entails completion of the
administrative review process in accordance with applicable procedural rules, including deadlines.
Woodfordv. Ngo, 548 U.S. 81 , 93-103 (2006).
Here, plaintiff alleges that the excessive force incident at PCC occurred on January 15,
2018. (Docket No. 1-1 at 1). However, the grievance that plaintiff attached to his complaint is
dated July 12, 2018. (Docket No. 1-2 at 2). As such, nearly six months elapsed between the incident
and plaintiffs grievance. Defendant notes that grievances must be made within fifteen days of the
incident. Indeed, defendant points out that the grievance response plaintiff attached to the
complaint states, in part, that plaintiffs right to raise the issue had expired. (Docket No. 1-2 at 1).
As explained above, proper exhaustion, including compliance with the deadlines of the
administrative review process, is a mandatory precondition to filing a § 1983 action in federal
court. Plaintiff appears to have failed to abide by the administrative procedures at PCC, which
require an inmate to submit a complaint regarding a grievable issue within fifteen days of the
alleged incident. Therefore, plaintiff will be ordered to show cause in writing and within twentyone (21) days why defendant's motion should not be granted, and this case dismissed. That is,
plaintiff must explain why he failed to submit his grievance within the fifteen-day period in
accordance with the procedures of the Missouri Department of Corrections.
IT IS HEREBY ORDERED that plaintiff shall show cause in writing and within twentyone (21) days of the date of this order why defendant's motion should not be granted, and this
case dismissed, due to plaintiffs failure to properly exhaust administrative remedies.
IT IS FURTHER ORDERED that if plaintiff fails to comply with this order, his claim
against defendant Kyle Smith will be dismissed.
Dated this ~
day of ~
STEPHEN N. LIMBAUGH,JR.
UNITED STATES DISTRICT JUDGE
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