Brown v. Larty et al

Filing 49

MEMORANDUM AND OPINION and ORDER OF PARTIAL DISMISSAL re 43 MOTION for Partial Summary Judgment filed by Jose Avelar and, Shawn Larty. Plaintiffs claims against Shawn Larty and Jose Avelar regarding the use of force incident that occurred on October 29, 2008 are DISMISSED with prejudice. Signed by Magistrate Judge John D. Love on 10/25/2010. (gsg)

Brown v. Larty et al

Doc. 49

IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF TEXAS T Y LE R DIVISION

W A R R E N J. BROWN, #1013153 VS. S H A W N LARTY, ET AL.

§ § § C IV IL ACTION NO. 6:09cv69

M E M O R A N D U M OPINION AND O R D E R OF PARTIAL DISMISSAL P lain tiff Warren J. Brown, an inmate previously confined at the Michael Unit of the Texas p riso n system, proceeding pro se and in forma pauperis, filed the above-styled and numbered civil righ ts lawsuit pursuant to 42 U.S.C. § 1983. The complaint was transferred to the undersigned p u rsu an t to 28 U.S.C. § 636(c). H isto ry of the Case T h e original complaint was filed on February 17, 2009. On June 25, 2010, the Court issued an opinion permitting the Plaintiff to proceed with his excessive use of force claim against Officer S h aw n Larty for an incident that occurred on June 15, 2008, and with a second excessive use of force claim against Officers Shawn Larty and Jose Avelar for an incident that occurred on October 29, 2008. On September 20, 2010, the Defendants filed a motion for partial summary judgment limited to the defense of exhaustion of administrative remedies (docket entry #43). The Plaintiff was ordered to file a response by October 13, 2010. He was placed on notice that the motion may be granted if he failed to timely file a response. As of today, the Plaintiff has not filed a response to the motion.

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The Defendants argued that the Plaintiff did not exhaust his administrative remedies with resp ect to the incident that occurred on October 29, 2008. They submitted competent summary ju d gm en t evidence showing that the Plaintiff filed a Step 1 grievance with respect to the incident, but h e never filed a Step 2 grievance. D iscu ssio n and Analysis T h e law governing the exhaustion of administrative remedies is 42 U.S.C. § 1997e. In 1996, C o n gress enacted the Prison Litigation Reform Act ("PLRA"), which mandated that no action shall b e brought by a prisoner "until such administrative remedies as are available are exhausted." 42 U .S .C . § 1997e(a). The Supreme Court accordingly unanimously concluded that inmates must exhaust th eir administrative remedies before proceeding to federal court. Booth v. Churner, 532 U.S. 731 (2 0 0 1 ). The Supreme Court subsequently held that exhaustion is mandatory and is required for all actio n s brought by prisoners. Porter v. Nussle, 534 U.S. 516, 524 (2002). The Supreme Court su b seq u en tly reiterated that exhaustion is mandatory and will not be excused when an inmate fails to tim ely exhaust his administrative remedies. Woodford v. Ngo, 548 U.S. 81, 84 (2006). Exhaustion also requires that a prisoner satisfy the requirement of "proper exhaustion." Id. at 83. The Supreme C o u rt's most recent pronouncement on exhaustion was in Jones v. Bock, 549 U.S. 199 (2007). The S u p rem e Court stated that "[t]here is no question that exhaustion is mandatory under the PLRA and th at unexhausted claims cannot be brought in court." Id. at 211. It was added, however, that the " failu re to exhaust is an affirmative defense under the PLRA, and that inmates are not required to sp ecifically plead or demonstrate exhaustion in their complaints." Id. at 216. Most recently, the Fifth Circuit provided guidance concerning how the exhaustion question sh o u ld be handled in Dillon v. Rogers, 596 F.3d 260 (5th Cir. 2010). The following guidelines were p r o v id e d : 2

As a final matter, we now provide a brief summary of how district courts should approach ex h au stio n questions under the PLRA. When the defendant raises exhaustion as an affirmative d efen se, the judge should usually resolve disputes concerning exhaustion prior to allowing the case to proceed on the merits. If the plaintiff survives summary judgment on exhaustion, the ju d ge may resolve disputed facts concerning exhaustion, holding an evidentiary hearing if n e c e s s a r y. Id . at 272-73. In the present case, the Defendants have submitted uncontested competent summary judgment ev id en ce showing that the Plaintiff did not file a Step 2 grievance regarding the incident that occurred o n October 29, 2008. The motion for partial summary judgment limited to the defense of exhaustion o f administrative remedies should be granted. It is therefore O R D E R E D that the motion for partial summary judgment limited to the defense of exhaustion o f administrative remedies (docket entry #43) is GRANTED and the Plaintiff's claims against Shawn Larty and Jose Avelar regarding the use of force incident that occurred on October 29, 2008 are

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D IS M IS S E D with prejudice. The sole claim remaining in this lawsuit concerns the Plaintiff's ex cessiv e use of force claim against Officer Shawn Larty for the incident that occurred on June 15, 2008.

So ORDERED and SIGNED this 25th day of October, 2010.

___________________________________ JOHN D. LOVE UNITED STATES MAGISTRATE JUDGE

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