Richard v. Tune et al

Filing 27

MEMORANDUM ORDER adopting 23 Report and Recommendation. Ordered that the civil action is dismissed without prejudice for failure to prosecute and to obey an order of the Court, and for failure to exhaust administrative remedies prior to filing suit. Ordered that any and all motions which may be pending in this civil action are hereby denied. Signed by Judge Ron Clark on 10/12/2016. (bjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
LARRY W. RICHARD

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v.

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JERRY TUNE, ET AL.

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CIVIL ACTION NO. 6:15cv782

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Larry Richard, proceeding pro se, filed this civil rights lawsuit under 42 U.S.C.
§1983 complaining of alleged violations of his constitutional rights. This Court referred the case
to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended
Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate
Judges.
Richard filed an original complaint in the form of a letter, following this with an amended
complaint on a standard §1983 form. He then submitted two declarations and a motion for leave to
file a second amended complaint, followed by affidavits, grievances, and additional exhibits. This
motion for leave to file a second amended complaint was not accompanied by the proposed amended
complaint, as required by Local Rule CV-7(k).
In response to this array of paperwork, the Magistrate Judge denied Richard’s motion for
leave to amend, but ordered him to file an amended complaint setting out a short and plain statement
of all of his claims. The Magistrate Judge provided guidance to Richard on the matters which
should be included in the amended complaint, instructing him to furnish: (1) a concise statement of
all his claims, including dates if known; (2) the names of the individual or individuals whom he
wished to sue; (3) a statement showing how each of those individuals was involved in the facts

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forming the basis of the claim; (4) the harm which he suffered; (5) the relief sought; and (6) whether
or not he had exhausted his administrative remedies prior to filing suit.
Richard filed a response to this order stating that he no longer wished to add the Central
Grievance Office as a defendant in his lawsuit, but that he wanted the Court to “recognize” his
original complaint. When he did not comply with the Court’s order to file an amended complaint,
the Magistrate Judge issued a Report recommending that the lawsuit be dismissed without prejudice
for failure to prosecute or to obey an order of the Court.
In his objections to this Report, Richard states that there was a “major misunderstanding.”
He says that he did provide the Court with an “official 1983 complaint,” in the form of his first
amended complaint. Richard explains that his original complaint was simply a “test run to see if the
letter would make it off the unit, and if plaintiff received a civil action number, he’d provide the
court with the official documents to file his complaint.” He contends that he provided a concise
statement of his claims in a letter dated August 23, 2015. Richard asserts that his first amended
complaint was meant to be the original complaint and that he knew his original letter was
insufficient because it was a “test letter.”
The multiplicity of documents submitted by Richard showed the need to have one complaint
on file which set out all of his claims, against all of the defendants. The Fifth Circuit has stated that
while the plaintiff is master of his pleadings, the court is master of its docket. Hernandez v. Spencer,
780 F.2d 504, 506 (5th Cir. 1986). In this case, the Magistrate Judge determined that the plaintiff’s
claims should be brought together into one document which would serve as the operative pleading.
The order to amend was intended to accomplish this purpose. Richard’s failure to comply with this
order, regardless of whether or not he believed it necessary, amounts to a failure to prosecute or to
obey an order of the Court. His objections are without merit.
In addition, Richard’s complaint suffers from an additional flaw. He states in his first
amended complaint that he did not exhaust his administrative remedies because “I filed claimed [sic]
before Step Two processed. As soon as I get Step Two I’ll send it.” In December of 2015, some four
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months after he filed his lawsuit, Richard furnished copies of Step One and Step Two grievances
which he said would show exhaustion. The Step One grievance was signed by him on September
15, 2015, over a month after his lawsuit was filed, and the Step Two grievance was signed on
October 26, 2015.
The law governing the exhaustion of administrative remedies is 42 U.S.C. § 1997e, which
provides as follows:
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.
Under this statute, exhaustion is mandatory and is required for all actions brought by
prisoners. Woodford v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). The purpose
of the exhaustion requirement is to afford corrections officials time and opportunity to address
complaints internally before allowing the initiation of a federal case. Porter v. Nussle, 534 U.S. 516,
525, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002).
The Fifth Circuit has held that prisoners must exhaust their administrative remedies prior to
filing suit and district courts lack discretion to excuse a prisoner’s failure to exhaust his
administrative remedies. Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012). Where the face of
the complaint makes clear that a prisoner has failed to exhaust administrative remedies, the district
court may dismiss the complaint without requesting an answer from the defendants. Dillon v.
Rogers, 596 F.3d 260, 272 n.3 (5th Cir. 2010), citing Carbe v. Lappin, 492 F.3d 325, 327-28 (5th
Cir. 2007).
Exhaustion of administrative remedies for prisoners of the Texas Department of Criminal
Justice, Correctional Institutions Division is accomplished through the two-step grievance
procedure. The Step One grievance is handled at the prisoner’s facility, while the Step Two
appeal is handled at the state level. Both steps must be pursued in order to complete the
exhaustion process. Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004).

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Richard plainly states in his complaint that he had not exhausted all of his administrative
remedies prior to bringing suit because he was still waiting on the Step Two response. The
grievances he submitted to prove exhaustion were dated after the lawsuit was filed and thus cannot
serve to show that Richard had exhausted his administrative remedies prior to filing the lawsuit.
Because pre-filing exhaustion is mandatory and district courts have no discretion to waive
this requirement, his lawsuit may be dismissed on this basis as well. See Guy v. LeBlanc, civil
action no. 2:13cv2792, 2014 U.S. Dist. LEXIS 179490 (E.D.La., January 15, 2014, Report adopted
at 2015 U.S. Dist. LEXIS 622 (E.D.La., January 5, 2015)) (stating that “when a prisoner fails to
exhaust his administrative remedies prior to filing suit without a valid excuse, a court properly
dismisses the action without prejudice to its refiling after the prisoner exhausts his administrative
remedies,” citing Wendell v. Asher, 162 F.3d 887, 890-91 (5th Cir. 1998)); see also Wood v. Hirsch,
civil action no. 9:10cv53, 2010 U.S. Dist. LEXIS 94482 (E.D.Tex., July 23, 2010, Report adopted
at 2010 U.S. Dist. LEXIS 87525 (E.D.Tex., August 24, 2010) (dismissing lawsuit without prejudice
where plaintiff was in the process of exhausting administrative remedies but had not completed this
process at the time that the lawsuit was filed), aff’d 461 F.App’x 365, 2011 U.S. App. LEXIS 15003
(5th Cir., July 20, 2011).
The Court has conducted a careful de novo review of those portions of the Magistrate Judge’s
proposed findings and recommendations to which the Plaintiff objected. See 28 U.S.C. §636(b)(1)
(District Judge shall “make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.”) Upon such de novo review,
the Court has determined the Report of the Magistrate Judge is correct and the Plaintiff’s objections
are without merit. It is accordingly
ORDERED that the Plaintiff’s objections are overruled and the Report of the Magistrate
Judge (docket no. 23) is ADOPTED as the opinion of the District Court. It is further

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ORDERED that the above-styled civil action is DISMISSED WITHOUT PREJUDICE
for failure to prosecute and to obey an order of the Court, and for failure to exhaust administartive
remedies prior to filing suit. It is further
ORDERED that any and all motions which may be pending in this civil action are hereby
DENIED.
So ORDERED and SIGNED this 12 day of October, 2016.

___________________________________
Ron Clark, United States District Judge

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