Dreymala v. University of Texas, Dr. Larry R. Faulkner et al

Filing 5

ORDER OF DISMISSAL without prejudice for failure to state a claim predicated on failure to exhaust. Any and all pending motions are DENIED as moot.Case terminated on 5/30/2013.(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
W ESLEY S COTT D REYMALA,
Plaintiff,
v.
L ARRY R. F AULKNER, et al.,
Defendants.

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C IVIL A CTION H-13-1523

ORDER OF DISMISSAL
Wesley Scott Dreymala, a state inmate proceeding pro se, filed this section 1983
lawsuit complaining of violations of his civil rights. He acknowledges in his complaint that
he did not exhaust his administrative remedies through the prison grievance system prior to
filing this lawsuit. (Docket Entry No. 1, p. 3.) As such, this cause of action is subject to
dismissal for failure to exhaust the administrative grievance process.
Under the Prison Litigation Reform Act of 1996 (PLRA), an inmate is required to
exhaust administrative remedies for all actions brought with respect to prison conditions
before filing a civil rights suit in federal court under 42 U.S.C. § 1983. 42 U.S.C. §
1997e(a). The Supreme Court has emphasized that section 1997e(a) mandates exhaustion
of all administrative procedures before an inmate can file any suit challenging prison
conditions. See Woodford v. Ngo, 548 U.S. 81 (2006). Consistent with Supreme Court
precedent, the Fifth Circuit has also mandated that a prisoner must exhaust his administrative
remedies by complying with applicable grievance procedures before filing a federal civil

rights lawsuit related to prison conditions. See Johnson v. Johnson, 385 F.3d 503, 515 (5th
Cir. 2004).
A district court may “dismiss a case prior to service on defendants for failure to state
a claim, predicated on failure to exhaust, if the complaint itself makes clear that the prisoner
failed to exhaust.” Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007). Because plaintiff
admits in his complaint that he did not exhaust all steps of the grievance process prior to
filing this lawsuit, this lawsuit must be dismissed.
Accordingly, this case is DISMISSED WITHOUT PREJUDICE for failure to state
a claim predicated on failure to exhaust. Any and all pending motions are DENIED AS
MOOT. This dismissal constitutes a “strike” for purposes of section 1915(g).
The Clerk will provide a copy of this Order to all parties; to the TDCJ-Office of the
General Counsel, P.O. Box 13084, Austin, Texas, 78711; and to the Clerk of the United
States District Court for the Eastern District of Texas, Tyler Division, 211 West Ferguson,
Tyler, Texas, 75702, Attention: Three-Strikes List Manager.
Signed at Houston, Texas on May 30, 2013.

Gray H. Miller
United States District Judge

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