GONZALEZ-PEREZ v. ORTIZ et al

Filing 6

OPINION. Signed by Judge Noel L. Hillman on 5/10/2019. (rss, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SALVADOR GONZALEZ-PEREZ,

Civil Action No. 18-9184(NLH)

Plaintiff,
v.

OPINION

WARDEN ORTIZ, et al.,
Defendants.

APPEARANCES:
SALVADOR GONZALEZ-PEREZ
Fort Dix Federal Correctional Institution
East PO Box 2000
Fort Dix, NJ 08640
Plaintiff, Pro Se

Hillman, District Judge:
Currently before the Court is the complaint and motion for
a preliminary injunction of Plaintiff Salvador Gonzalez-Perez
(ECF No. 1).

Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A,

as well as 42 U.S.C. § 1997(e), this Court is required to screen
Plaintiff’s complaint and dismiss it if it is frivolous,
malicious, fails to state a claim for relief, seeks damages from
a party immune to suit, or was filed prior to the exhaustion of
Plaintiff’s administrative remedies.

For the following reasons,

this matter will be dismissed without prejudice as Plaintiff
informs the Court that he has not yet exhausted his

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administrative remedies.

Plaintiff’s motion seeking a

preliminary injunction will be denied without prejudice.
I.

BACKGROUND
Plaintiff, Salvador Gonzalez-Perez, is a citizen of Mexico

who at the time he filed his complaint was housed at the Fort
Dix correctional facility.

(ECF No. 1 at 3-4).

Plaintiff

apparently suffers from numerous medical issues and asserts that
he is unable to care for or take care of himself.
12).

(Id. at 11-

Plaintiff apparently relies on his fellow inmates to take

care of him, as he alleges that prison staff do not help him.
(Id. at 10-13).

Following numerous medical issues, Plaintiff

filed a grievance seeking to challenge administratively the care
he was receiving and the denial of his request for compassionate
release based on his lack of a release plan and the fact that
Plaintiff is subject to an immigration detainer.

(Id. at 13).

Following the filing of this grievance and an appeal of the
denial of compassionate release, both of which apparently
remained pending at the time Plaintiff filed this matter,
Plaintiff asserts he was retaliated against – his medical
records were apparently changed, his accommodations taken away,
and his scheduled transfer to a medical facility was changed to
a transfer to a non-medical facility.

(Id. at 13-14).

Plaintiff therefore states that he intends, at some point in the
future, to file a civil rights complaint raising claims against
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various BOP officials for denial of medical care, retaliation
and other issues.

(Id.).

Plaintiff has attached to his current filings a copy of the
complaint he intends to file in the future (see Document 2
attached to ECF No. 1), but states that he is still in the
process of exhausting his administrative remedies.
at 6, 9).

(ECF No. 1

Plaintiff thus admits he did not exhaust his

available administrative remedies prior to filing this matter,
but in any event seeks a preliminary injunction barring his
transfer to a non-medical facility and related relief.

(Id. at

9-24).
II.
A.

DISCUSSION
Legal Standard
Under the Prison Litigation Reform Act, Pub. L. 104-134, §§

801-810, 110 Stat. 1321-66 to 1321-77 (Apr. 26, 1996) (“PLRA”),
district courts must review complaints in those civil actions in
which a prisoner seeks redress against a governmental employee
or entity, see 28 U.S.C. § 1915A(b), or brings a claim with
respect to prison conditions, see 42 U.S.C. § 1997e.

The PLRA

directs district courts to sua sponte dismiss any claim that is
frivolous, is malicious, fails to state a claim upon which
relief may be granted, seeks monetary relief from a defendant
who is immune from such relief, or is on its face unexhausted.
See 28 U.S.C. §§ 1915(e)(2)(B), 1915A; 42 U.S.C. § 1997e.
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“The

legal standard for dismissing a complaint for failure to state a
claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) [or § 1915A] is
the same as that for dismissing a complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F.
App’x 120, 122 (3d Cir. 2012) (citing Allah v. Seiverling, 229
F.3d 220, 223 (3d Cir. 2000)).
In deciding a motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(6), a district court is “required to accept as true all
factual allegations in the complaint and draw all inferences in
the facts alleged in the light most favorable to the
[Plaintiff].” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228
(3d Cir. 2008). “[A] complaint attacked by a . . . motion to
dismiss does not need detailed factual allegations.” Bell
Atlantic v. Twombly, 550 U.S. 544, 555 (2007).

However, the

Plaintiff’s “obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. (citing Papasan v. Allain, 478
U.S. 265, 286 (1986)).

A court is “not bound to accept as true

a legal conclusion couched as a factual allegation.” Papasan,
478 U.S. at 286.

Instead, assuming the factual allegations in

the complaint are true, those “[f]actual allegations must be
enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555.
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“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim
for relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570).

“A

claim has facial plausibility when the pleaded factual content
allows the court to draw the reasonable inference that the
defendant is liable for misconduct alleged.” Id.

“Determining

whether the allegations in a complaint are plausible is a
context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Id. at 679.
“[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has
alleged—but it has not ‘show[n]’—‘that the pleader is entitled
to relief.’” Id. (citing Fed. R. Civ. P. 8(a)(2)).

Moreover,

while pro se pleadings are liberally construed, “pro se
litigants still must allege sufficient facts in their complaints
to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d
239, 245 (3d Cir. 2013) (citation omitted) (emphasis added).
B.

Analysis
In his current filings, Plaintiff states that he wishes, in

the future, to file a federal civil rights action, pursuant to,
inter alia, Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388 (1971), challenging the
conditions under which he is confined including his medical care
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and prison official’s retaliation against him for filing of a
grievance.

Plaintiff, however, readily admits that he had not

yet exhausted all of his administrative remedies at the time he
filed this matter.
Pursuant to 42 U.S.C. § 1997e, a plaintiff who is
incarcerated in prison at the time he seeks to file a complaint
is required to exhaust all available administrative remedies
before he may file a federal civil rights suit challenging
“prison conditions.”
(2006).

Woodford v. Ngo, 548 U.S. 81, 84-85

A prisoner is required to meet this exhaustion

requirement before filing his complaint “even where the relief
sought – [such as] monetary damages – cannot be granted by the
administrative process.”
U.S. 731, 734 (2001).

Id.; see also Booth v. Churner, 532

Where an administrative procedure is

available, a plaintiff seeking to challenge prison conditions
via a federal civil rights action must fully and properly
exhaust his administrative remedies prior to filing suit, and
district courts are without authority to excuse a plaintiff’s
failure to exhaust all available administrative remedies.

Ross

v. Blake, --- U.S. ---, ---, 136 S. Ct. 1850, 1856-57 (2016).
Because Plaintiff’s intended claims challenge aspects of
the conditions under which he was confined at the time he filed
suit – including his medical care during his incarceration and
the refusal of the BOP to release or transfer him, his suit is
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subject to this exhaustion requirement.

See Booth v. Churner,

206 F.3d 289, 298 (3d Cir. 2000), aff’d, 532 U.S. 731 (2001);
see also Porter v. Nussle, 534 U.S. 516, 532 (2002) (the
“exhaustion requirement applies to all inmate suits about prison
life, whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some other
wrong”).

As Plaintiff readily admits that he has available

administrative remedies which he has not yet fully exhausted
(see ECF No. 1 at 6, 9), his current complaint must be dismissed
without prejudice until such time Plaintiff has exhausted his
complaint.

See, e.g., Ahmed v. Dragovich, 297 F.3d 201, 210 (3d

Cir 2001); see also Oriakhi v. United States, 165 F. App’x 991,
993-94 (3d Cir. 2006) (finding a “unanimous circuit court
consensus that a prisoner may not fulfill the . . . exhaustion
requirement by exhausting remedies after the filing of the
complaint in federal court” and in turn holding that a complaint
which on its face admits to failure to exhaust prior to filing
must be dismissed).

Plaintiff is free to file a new complaint

once he has completed the exhaustion process.

Because this

Court is required by § 1997e to dismiss Plaintiff’s complaint
for failure to exhaust, Plaintiff’s motion seeking a preliminary
injunction must be denied without prejudice as Plaintiff has not
shown a strong likelihood of success on the merits of his claims
in light of the fact that he cannot recover in this Court on his
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unexhausted complaint.

See, e.g., Ward v. Aviles, No. 11-6252,

2012 WL 2341499, at *1 (D.N.J. June 18, 2012) (a plaintiff
seeking a TRO or preliminary in junction must show a strong
likelihood of success on the merits).
IV.

CONCLUSION
For the reasons set forth above, this Court will dismiss

Plaintiff’s complaint (ECF No. 1) without prejudice for failure
to exhaust administrative remedies prior to filing suit and will
deny Plaintiff’s request for a preliminary injunction (ECF No.
1) without prejudice as a result.

An appropriate order follows.

Date: May 10, 2019
At Camden, New Jersey

s/ Noel L. Hillman
Hon. Noel L. Hillman
United States District Judge

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