Pennington v. Abingdon Regional Jail et al

Filing 7

MEMORANDUM OPINION AND DISMISSAL ORDER granting Pennington in forma pauperis status. This action is hereby DISMISSED without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b). Signed by District Judge Jasmine H. Yoon on 1/3/2025. (Opinion and Order mailed to Pro Se Party/Parties via US Mail)(aab)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION

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Wesley Pennington,
Plaintiff,
v.
Abingdon Regional Jail and
New River Valley Jail,
Defendants.

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Civil Action No. 7:24-cv-00866

MEMORANDUM OPINION AND DISMISSAL ORDER
Plaintiff Wesley Pennington, a Virginia inmate proceeding pro se, filed a civil rights
action under 42 U.S.C. § 1983. Pennington complains about conditions at the jails where he
has been housed, including the lack of psychiatric medicine, underwear, and socks.
Pennington submitted the financial documentation and the consent to collection of
fees form required to support his application to proceed in forma pauperis. The court has
reviewed this information and GRANTS Pennington in forma pauperis status.
I.

Standard of Review

Under 28 U.S.C. § 1915A(a), the court must conduct an initial review of a “complaint
in a civil action in which a prisoner seeks redress from a governmental entity or officer or
employee of a governmental entity.” When the complaint of an incarcerated individual or
individual proceeding in forma pauperis fails to state a claim upon which relief could be granted
or is frivolous, the case must be dismissed. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b).

II.

Analysis

This case is one of the “rare case[s]” in which an early dismissal of this action is
warranted based upon Pennington’s admitted failure on the face of his complaint to exhaust
available administrative remedies prior to filing suit. See Anderson v. XYZ Corr. Health Servs.,
Inc., 407 F.3d 674, 682 (4th Cir. 2005).
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be
brought with respect to prison conditions under section 1983 of this title, or any other Federal
law, by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “PLRA’s
exhaustion requirement is mandatory.” Anderson, 407 F.3d at 677 (citing Porter v. Nussle, 534
U.S. 516, 524 (2002)). Exhaustion is required even if the administrative remedies do not meet
federal standards, are not “plain, speedy, and effective,” and even if the relief sought, such as
monetary damages, is not available through the grievance process. Porter, 534 U.S. at 524.
The PLRA also requires that an inmate must exhaust available administrative remedies
“before bringing suit to challenge prison conditions.” Ross v. Blake, 578 U.S. 632, 635 (2016)
(emphasis added). The requirement that a prisoner exhaust before filing in court allows
defendants to address complaints before being sued, reduces litigation if grievances are
satisfactorily resolved, and improves subsequent litigation by leading to the preparation of a
useful record. See Porter, 534 U.S. at 524–25.
Here, Pennington’s complaint indicated that he did not file any grievances related to
the matters raised in the complaint. (Compl. at 2 (Dkt. 1).) H She noted that she did not do
so because it “Doesnt [sic.] do any good.” (Id.) Claimed futility is not, however, an exception
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to the exhaustion requirement. Booth v. Churner, 532 U.S. 731, 741 n.6 (2001). Rather, an
inmate must exhaust all administrative remedies that are available. Failure to exhaust is an
affirmative defense that would be raised by the defendants in a responsive pleading, so the
court’s authorization to dismiss complaints prior to the responsive pleading is circumscribed.
However, “[a] court may sua sponte dismiss a complaint when the alleged facts in the
complaint, taken as true, prove that the inmate failed to exhaust [her] administrative remedies.”
Custis v. Davis, 851 F.3d 358, 361 (4th Cir. 2017). An early dismissal without prejudice in cases
where the lack of exhaustion is apparent on the face of the complaint would afford plaintiffs
an opportunity to exhaust the administrative remedies that are available to them and give them
the best chance to preserve their claims. Because Pennington admits in his complaint that he
failed to exhaust administrative remedies, the court believes this is one of the rare cases in
which an early dismissal is appropriate.
III.

Conclusion

Pennington’s complaint fails to state any viable claim upon which relief can be granted
because the court cannot grant relief as to unexhausted claims. Accordingly, the court orders
that this action is hereby DISMISSED without prejudice pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(ii), 1915A(b). The Clerk is directed to mail a copy of this Memorandum
Opinion and Dismissal Order to Pennington.
ENTERED this 3rd day of January 2025.
/s/

Jasmine H. Yoon

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HON. JASMINE H. YOON
UNITED STATES DISTRICT JUDGE

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