McWhorter v. Holley

Filing 9

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
HOUSTON DIVISION
CALVIN MCWHORTER,
SPN #01166790,

§
§
§
§
§
§
§
§
§
§

Plaintiff,

v.
FNU HOLLEY,
Defendant.

ENTERED
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.
("Complaint")
the Jail.

§

1983

(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
relief."

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.

I.

Discussion

McWhorter sues Officer Holley for violating his civil rights
in an unspecified way. 1

1

Without providing any details about his

Complaint, Docket Entry No. 1, pp. 3-4.

claim,

McWhorter

seeks

compensatory

damages

for

"pain

and

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

liberal construction,

the Complaint

filed by McWhorter does not assert facts that would establish a
viable claim under 42

u.s.c.

§

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.
F.3d

245,

McWhorter,

252-53

See Atteberry v. Nocona General Hospital, 430
(5th

Cir.

which contains

supposedly did,

2005).

no details

The
about

Complaint
what

the

filed

by

defendant

is insufficient to satisfy Rule 8 (a) (2)

of the

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."
(2009)
1974

s. Ct. 1937, 1949

(quoting Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955,
(2007)).

2

Ashcroft v. Iqbal, 129

Therefore,

the Complaint

Id. at 4.
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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.
42 U.S.C.
that

§

§

1997e(a).

1997e(a)

See

The Supreme Court has repeatedly emphasized

mandates

exhaustion

of

all

administrative

procedures before an inmate can file any suit challenging prison
conditions.

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,
910,

918-19

2382-83
(2007)

(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").
An

administrative

Harris County Jail.
93

(5th Cir.

1996)

grievance

process

is

available

at

the

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.

3

Id. at 3.
-3-

See Lane v.

Harris

County

WL 2868944,
(5th Cir.

*3

Jail

Medical

Dept.,

Civil

No.

H-06-0875,

2006

(S.D. Tex. Oct. 5, 2006), aff'd, 266 F. App'x 315

2008) .

If a formal grievance is not resolved at the

initial level following an investigation,
before the Inmate Grievance Board.

it goes to a hearing

See id.

Inmates are notified

of the Grievance Board's decision in writing within fifteen days.
See id.

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.

See id.

The Fifth Circuit has emphasized that "pre-filing exhaustion
of prison grievance processes

is mandatory"

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
the defendants.
Cir. 2010)
"failure

See Dillon v. Rogers, 596 F.3d 260, 272 n.3

(5th

(noting that sua sponte dismissal is appropriate where
to exhaust

complaint")
2007))) .

is

apparent

on the

face

of

a

plaintiff's

(citing Carbe v. Lappin, 492 F.3d 325, 327-28 (5th Cir.
Because

McWhorter

failed

to

exhaust

all

available

administrative remedies before filing suit in federal court, his
Complaint must be dismissed for failure to comply with 42 U.S.C.
§

1997e (a) .
-4-

II.

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

granted.
prejudice

Alternatively,
for

failure

required by 42 U.S.C.

§

to

the

Complaint

exhaust

is

DISMISSED

administrative

without

remedies

as

1997e(a).

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.

'SIMIJAKE
UNITED STATES DISTRICT JUDGE

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I
t