Barroso v. State of Texas et al

Filing 12

ORDER OF DISMISSAL adopting 7 Report and Recommendation. The complaint is dismissed without prejudice for failure to state a claim predicated on plaintiff's failure to exhaust his administrative remedies. All motions not previously ruled on are denied. Signed by Judge Ron Clark on 8/3/17. (tkd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

RICHARD BARROSO, #1452245

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VS.

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STATE OF TEXAS, ET AL.

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CIVIL ACTION NO. 6:17cv405

ORDER OF DISMISSAL
Plaintiff Richard Barroso, an inmate confined at the Michael Unit of the Texas prison
system, proceeding pro se, filed the above-styled and numbered civil rights lawsuit pursuant to 42
U.S.C. § 1983. The complaint was referred to United States Magistrate Judge John D. Love, who
issued a Report and Recommendation (Dkt. #7) concluding that the complaint should be dismissed
without prejudice for failure to state a claim predicated on Mr. Barroso’s failure to exhaust his
administrative remedies. Mr. Barroso has filed objections (Dkt. #11).
Mr. Barroso clearly states on the face of his handwritten original complaint that he has not
exhausted his administrative remedies. He asks the court to suspend the rule requiring him to
exhaust all available administrative remedies due to the emergency or special circumstances of his
case. In his objections, Mr. Barroso again asks the court to suspend the rule to exhaust all
available administrative remedies.
The law governing the exhaustion of administrative remedies is 42 U.S.C. § 1997e. In
1996, Congress enacted the Prison Litigation Reform Act (“PLRA”), which mandated that no
action shall be brought by a prisoner “until such administrative remedies as are available are
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exhausted.” 42 U.S.C. § 1997e(a). In light of the enactment of the PLRA, the Supreme Court
unanimously concluded that inmates must exhaust their administrative remedies before proceeding
to federal court.

Booth v. Churner, 532 U.S. 731, 121 S. Ct. 1819 (2001).

The Court

subsequently held that the PLRA requires “proper exhaustion,” meaning that “a prisoner must
complete the administrative review process in accordance with the applicable procedural rules,
including deadlines, as a precondition to bringing suit in federal court.” Woodford v. Ngo, 548
U.S. 81, 88, 126 S. Ct. 2378, 2384 (2006). More recently, the Court reiterated that “[t]here is no
question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be
brought in court.” Jones v. Bock, 549 U.S. 199, 211, 127 S. Ct. 910, 918-19 (2007).
Ordinarily, the failure to exhaust is an affirmative defense. Id. at 216, 127 S. Ct. at 921.
“Under Jones, however, a court can dismiss a case prior to service on defendants for failure to
state a claim, predicated on failure to exhaust, if the complaint itself makes it clear that the prisoner
failed to exhaust.” Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007) (citing Jones, 549 U.S. at
215, 127 S. Ct. at 921). Consequently, the Fifth Circuit has consistently held that a court may sua
sponte dismiss a case for failure to exhaust if the complaint itself makes clear that the prisoner
failed to exhaust. Scott v. Thomas, 553 F. App’x 462 (5th Cir. 2014); Moore v. Thaler, 436 F.
App’x 311, 312 (5th Cir. 2011); Hicks v. Garcia, 372 F. App’x 557 (5th Cir. 2010).
In the present case, Mr. Barroso did not use the standardized civil rights complaint form.
He presented a lengthy complaint which specifies that he had not exhausted his administrative
remedies. He states that he has filed three Step 1 grievances complaining about a denial of his
right of access to court. He has not received a response to any of the Step 1 grievances. He asks

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the Court to suspend the rule requiring him to exhaust all available administrative remedies due to
the emergency or special circumstances of his case. From the face of his complaint itself, it is
clear that he failed to exhaust his administrative remedies before he filed the lawsuit.

As

mandated in Carbe, the lawsuit should be dismissed for failure to state a claim predicated on the
failure to exhaust. The court has “no discretion to excuse a prisoner’s failure to properly exhaust
the prison grievance process before filing their complaint.” Gonzalez v. Seal, 702 F.3d 785, 788
(5th Cir. 2012). Mr. Barroso’s request in his complaint and objections to disregard the exhaustion
requirement lacks merit.
The Report of the Magistrate Judge, which contains his proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration, and
having made a de novo review of the objections raised by Mr. Barroso to the Report, the court is
of the opinion that the findings and conclusions of the Magistrate Judge are correct, and Mr.
Barroso’s objections are without merit. Therefore, the court adopts the findings and conclusions
of the Magistrate Judge as the findings and conclusions of the court. It is accordingly
ORDERED that the complaint is DISMISSED without prejudice for failure to state a
claim predicated on Mr. Barroso’s failure to exhaust his administrative remedies. All motions not
previously ruled on are DENIED.

So ORDERED and SIGNED this 3 day of August, 2017.

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Ron Clark, United States District Judge

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