Mendoza v. Medical Department of Unit et al

Filing 10

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE U. S. MAGISTRATE JUDGE AND ENTERING FINAL JUDGMENT. It is ordered that this civil action is dismissed without prejudice for failure to exhaust administrative remedies. Signed by Judge Ron Clark on 6/2/17. (mrp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
ALVINO MENDOZA JR.

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v.

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MEDICAL DEPARTMENT OF UNIT,
ET AL.

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CIVIL ACTION NO. 6:16cv394

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Alvino Mendoza, proceeding pro se, filed this civil rights lawsuit under 42
U.S.C. §1983 complaining of alleged violations of her 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.
I. Background
Mendoza complained that on March 22, 2016, he was seen by the unit doctor because of a
swollen testicle. He was sent to the local hospital for a sonogram, which showed an infection. The
hospital doctor ordered three different prescriptions and the nurse told him to take the medications
as ordered.
Once he arrived back on the unit, however, the head nurse refused Mendoza two of the three
medications he was ordered. In a copy of an unprocessed Step One grievance attached to the
complaint, Mendoza stated that the nurse told him he could have the antibiotic but not the other two
medications. Mendoza stated that the grievance procedure was still in process at the time he filed
his lawsuit.

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II. The Report of the Magistrate Judge
After review of the pleadings, the Magistrate Judge issued a Report recommending that the
lawsuit be dismissed for failure to exhaust administrative remedies. The Magistrate Judge
determined that pre-filing exhaustion is mandatory and district courts lack discretion to excuse a
prisoner’s failure to exhaust administrative remedies prior to filing the lawsuit. Gonzalez v. Seal,
702 F.3d 785, 788 (5th Cir. 2012). Where the failure to exhaust is clear on the face of the complaint,
the district court may dismiss the lawsuit without requiring an answer from the Defendants. Dillon
v. Rogers, 596 F.3d 260, 272 n.3 (5th Cir. 2010).
The Magistrate Judge observed that Mendoza affirmatively stated that he had not completed
the exhaustion process at the time he filed the lawsuit. See Johnson v. Johnson, 385 F.3d 503, 515
(5th Cir. 2004) (both steps of the TDCJ grievance process must be completed to exhaust
admnistrative remedies). Thus, the Magistrate Judge determined that Mendoza’s lawsuit should be
dismissed without prejudice.
In response to the Magistrate Judge’s Report, Mendoza filed a “supplement to complaint”
(docket no. 9) which will be construed in the interest of justice as objections to the Report. In these
objections, Mendoza states that he has now completed the exhaustion process, attaching copies of
his Step One and Step Two grievances. The Step Two grievance response is dated May 27, 2016,
which is over a month after the lawsuit was signed.
III. Discussion
The Fifth Circuit has held as follows:
[D]istrict courts have no discretion to excuse a prisoner's failure to properly exhaust
the prison grievance process before filing their complaint. It is irrelevant whether
exhaustion is achieved during the federal proceeding. Pre-filing exhaustion is
mandatory, and the case must be dismissed if available administrative remedies were
not exhausted.
Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012). The record in this case shows and
Mendoza’s objections acknowledge that he did not complete the exhaustion process prior to filing
his lawsuit. While he may have completed the exhaustion process after filing the lawsuit, the Fifth
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Circuit stated that this is irrelevant; the case must be dismissed if available administrative remedies
were not exhausted prior to filing the lawsuit. The Magistrate Judge properly recommended that the
lawsuit be dismissed without prejudice, and Mendoza’s objections are without merit.
IV. Conclusion
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 that 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. 7) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the above-styled civil action is DISMISSED WITHOUT PREJUDICE
for failure to exhaust administrative remedies. 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 2 day of June, 2017.

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Ron Clark, United States District Judge

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