McWhorter v. Holley
MEMORANDUM OPINION AND ORDER dismissing without prejudice 1 Complaint. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
April 04, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-0564
MEMORANDUM OPINION AND ORDER
While in custody at the Harris County Jail Calvin McWhorter
filed a Prisoner's Civil Rights Complaint under 42 U.S.C.
(Docket Entry No. 1), against an officer employed at
Because McWhorter is incarcerated, the court is required
to scrutinize the claims and dismiss the Complaint, in whole or in
part, if it determines that the Complaint "is frivolous, malicious,
or fails to state a claim upon which relief may be granted" or
"seeks monetary relief from a defendant who is immune from such
2 8 U. S . C.
1915A (b) .
After considering all of the
pleadings, the court concludes that this case must be dismissed for
the reasons explained below.
McWhorter sues Officer Holley for violating his civil rights
in an unspecified way. 1
Without providing any details about his
Complaint, Docket Entry No. 1, pp. 3-4.
suffering" and for unspecified "injuries" that he sustained as a
result of Holley's actions. 2
Pleadings filed by a pro se litigant are entitled to a liberal
construction that affords all reasonable inferences that can be
drawn from them.
See Haines v. Kerner, 92 S. Ct. 594, 596 (1972).
Even with the benefit of a
filed by McWhorter does not assert facts that would establish a
viable claim under 42
1983, which requires a plaintiff to
demonstrate (1) a violation of the Constitution or of federal law;
and (2) that the violation was committed by someone acting under
color of state law.
See Atteberry v. Nocona General Hospital, 430
is insufficient to satisfy Rule 8 (a) (2)
Federal Rules of Civil Procedure, which requires a plaintiff to set
forth in his complaint "a short and plain statement of the claim
showing that the pleader is entitled to relief."
A complaint must
be dismissed under Rule 8 if it does not state a claim that is
"plausible on its face."
s. Ct. 1937, 1949
(quoting Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955,
Ashcroft v. Iqbal, 129
Id. at 4.
filed by McWhorter is
subject to dismissal for failure to state a claim for which relief
may be granted.
More importantly, McWhorter concedes in his Complaint that he
did not exhaust available administrative remedies before filing
this lawsuit. 3
McWhorter's Complaint is governed by the Prison
Litigation Reform Act ( "PLRA"), which requires prisoners to exhaust
administrative remedies before filing suit in federal court.
The Supreme Court has repeatedly emphasized
procedures before an inmate can file any suit challenging prison
See Booth v. Churner, 121 S. Ct. 1819, 1825 (2001);
Porter v. Nussle, 122 S. Ct. 983, 988 (2002); Woodford v. Ngo, 126
S. Ct. 2378,
(2006); see also Jones v. Bock,
127 S. Ct.
(confirming that "[t] here is no question that
exhaustion is mandatory under the PLRA and that unexhausted claims
cannot be brought in court").
Harris County Jail.
See, e.g., Myers v. Klevenhagen, 97 F.3d 91,
(referencing internal grievance procedures).
Under this three-step process all inmates who have a grievance
about conditions of confinement must attempt informal resolution,
followed by a formal grievance and then an appeal.
Id. at 3.
See Lane v.
(S.D. Tex. Oct. 5, 2006), aff'd, 266 F. App'x 315
If a formal grievance is not resolved at the
initial level following an investigation,
before the Inmate Grievance Board.
it goes to a hearing
Inmates are notified
of the Grievance Board's decision in writing within fifteen days.
If the inmate disagrees with the findings of the Grievance
Board, then the inmate is instructed to appeal that result to the
Captain of the Inmate Affairs Division.
The Fifth Circuit has emphasized that "pre-filing exhaustion
of prison grievance processes
and that district
courts lack discretion to excuse a prisoner's failure to exhaust
his administrative remedies.
(5th Cir. 2012).
Gonzalez v. Seal, 702 F.3d 785, 788
Where the face of the complaint makes clear that
an inmate has failed to exhaust administrative remedies, a district
court may dismiss the complaint without requesting an answer from
See Dillon v. Rogers, 596 F.3d 260, 272 n.3
(noting that sua sponte dismissal is appropriate where
(citing Carbe v. Lappin, 492 F.3d 325, 327-28 (5th Cir.
administrative remedies before filing suit in federal court, his
Complaint must be dismissed for failure to comply with 42 U.S.C.
1997e (a) .
Conclusion and Order
Based on the foregoing,
the court ORDERS that the Complaint
filed by Calvin McWhorter (Docket Entry No. 1) is DISMISSED without
prejudice for failure to state a claim upon which relief may be
required by 42 U.S.C.
The Clerk is directed to provide a copy of this Memorandum
Opinion and Order to the parties.
SIGNED at Houston, Texas, on this the 4th day of April, 2017.
UNITED STATES DISTRICT JUDGE
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