Conklin v. Randolph

Filing 6

REPORT AND RECOMMENDATIONS that the Court DISMISS Conklin's 1 Complaint for failure to exhuast administrative remedies. Signed by Judge Andrew W. Austin. (klw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
DAVID CONKLIN #1732987

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V.
D. RANDOLPH

A-12-CA-867-SS

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE SAM SPARKS
UNITED STATES DISTRICT JUDGE
The Magistrate Judge submits this Report and Recommendation to the District Court

pursuant to 28 U.S.C. §636(b) and Rule 1(f) of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
United States Magistrates, as amended, effective December 1, 2002.
Before the Court is Plaintiff’s complaint. Plaintiff, proceeding pro se, has been granted leave
to proceed in forma pauperis.
STATEMENT OF THE CASE
At the time he filed his complaint pursuant to 42 U.S.C. § 1983, Plaintiff was confined in the
Travis State Jail. He asserts on September 7, 2012, D. Randolph made false statements against the
plaintiff in a disciplinary report. Plaintiff contends Randolph made the false statements to retaliate
against the plaintiff for attending the law library. On September 12, 2012, Plaintiff was found guilty
of attempting to establish an inappropriate relationship with Randolph, the law librarian, by giving
her a piece of artwork. Plaintiff denied the charge, stating he was donating a piece of artwork to the
law library. Plaintiff asserts he was found guilty of the charge and he received 30 days loss of
privileges for recreation, visitation, and commissary, 15 days of solitary confinement, which was

suspended, and a reprimand. Plaintiff sues D. Randolph. Plaintiff requests the Court to order
Defendant to hire her own attorney. In addition, he seeks declaratory relief and punitive damages.
Plaintiff executed his complaint on September 12, 2012, the same day of his disciplinary
hearing. On the face of his complaint Plaintiff asserts he filed a Step I Grievance on September 7,
2012, but he had not received a response to his grievance by the time he executed his complaint, five
days later.
DISCUSSION AND ANALYSIS
The law governing the exhaustion of administrative remedies is found in 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
exhausted.” 42 U.S.C. § 1997e(a). The Supreme Court subsequently reviewed the 1996 provisions
regarding exhaustion and 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 Supreme
Court has repeatedly held that exhaustion is mandatory and is required for all actions brought by
prisoners. Woodford v. Ngo, 548 U.S. 81, 84, 126 S. Ct. 2378 (2006); Porter v. Nussle, 534 U.S.
516, 524, 122 S. Ct. 983 (2002).
The Supreme Court’s most recent pronouncement on exhaustion was in Jones v. Bock, 549
U.S. 199, 127 S. Ct. 910 (2007). The Supreme Court stated that “[t]here is no question that
exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.”
Id. at 211. It was added, however, that the “failure to exhaust is an affirmative defense under the
PLRA, and that inmates are not required to specifically plead or demonstrate exhaustion in their
complaints.” Id. at 216. The Fifth Circuit has specified, however, that after Jones v. Bock, a
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complaint is still subject to dismissal for failure to state a claim where the prisoner’s failure to
exhaust appears on the face of the complaint. Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007).
In the present lawsuit, the fact that Plaintiff failed to exhaust his administrative remedies
before he filed his lawsuit is evident on the face of the complaint. Plaintiff asserts he filed his Step
I Grievance five days before he executed his civil rights complaint and before he received a response
to his grievance. Under federal law, Plaintiff is not entitled to bring his lawsuit until he has
exhausted his administrative remedies, thus the lawsuit should be dismissed.
RECOMMENDATION
It is therefore recommended that Plaintiff’s complaint be dismissed without prejudice for
failure to exhaust his administrative remedies.
OBJECTIONS
Within 14 days after receipt of the magistrate judge’s report, any party may serve and file
written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636
(b)(1)(C). Failure to file written objections to the proposed findings and recommendations contained
within this report within 14 days after service shall bar an aggrieved party from de novo review by
the district court of the proposed findings and recommendations and from appellate review of factual
findings accepted or adopted by the district court except on grounds of plain error or manifest
injustice. Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc); Thomas
v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-277 (5th Cir. 1988).
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is

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ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 25th day of September, 2012.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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