CLINTON AVERITTE, Magistrate Judge
Plaintiff THOMAS JEFFERSON SIMS, acting pro se and while a prisoner confined in the Texas Department of Criminal Justice, Correctional Institutions Division, has filed suit pursuant to Title 42, United States Code, section 1983 complaining against the above-referenced defendants and has been granted permission to proceed in forma pauperis.
Plaintiff explains in his original complaint that, by designating defendant DOE, he intends to sue "unknown . . . Agents, Servants, Officers, and/or employees of the State of Texas employed and/or assigned at" the Clements Unit. Further, he states that, by designating defendant SAUAGES, he intends to sue "unknown . . . Agents, Servants, officers and/or employees of Texas Tech University Health Science Center Health Care System" providing care to inmates at the Clements Unit.
By his original complaint, plaintiff informs the Court his problem began in 1996. He then recounts nineteen incidents, the latest of which occurred in October 26, 1999, and concludes that "[t]his is the end of [his] recording, Because [he] got depress [sic]. . . ." Only two of those incidents mention a named defendant, Dr. REVELL, and neither of those incidents is mentioned or implicated in the grievance supplied by plaintiff with his original complaint. Review of the grievances submitted by plaintiff with his March 1, 2002, Questionnaire response reveals these too fail to show exhaustion of claims against defendant REVELL based on either of these incidents. Plaintiff has filed suit before exhausting administrative remedies on this claim and, therefore, is asserting a claim for which he has not exhausted administrative remedies before filing suit in federal court. By choosing to file and pursue suit before meeting the section 1997e exhaustion of administrative remedies requirement, plaintiff has sought relief to which he was not entitled. Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998).
Further, by not grieving these claims against defendant REVELL, plaintiff has no basis on which to argue limitations should be tolled. Harris v. Hegmann, 198 F.3d 153 (5th Cir. 1999). There is no federal statute of limitations for civil rights actions; therefore, the two-year Texas general personal injury limitations period is applied. Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993). Plaintiff signed his original complaint on February 1, 2002, well after limitations expired on any claims connected with the 1999 incidents he recounts.
Consequently, plaintiff's claims as set forth in his original complaint lack an arguable basis in law and are frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Noting the vague and conclusory nature of plaintiff's allegations against the defendants, noting as well the fact that the grievance submitted with his original complaint appeared to be unrelated to any claim against defendant, and to afford plaintiff every opportunity to state any claim he was attempting to assert, the Court issued a Briefing Order requiring plaintiff to state each and every act on which he based a claim for liability against each defendant, along with how he was harmed by each alleged act or omission.
Plaintiff's March 1, 2002, Questionnaire response to question no. 1 is still vague and conclusory. Further, plaintiff has ignored the Court's instruction to provide dates or approximate dates for the acts or omissions on which he bases his claims against defendants. Review of the grievances attached to plaintiff's Questionnaire response does nothing to clarify or provide factual specificity to plaintiff's claims. Indeed, the Step 2 grievances provided by plaintiff concern a strip search, acts or omissions by officers Richerson, Sulls, Nurse Richardson, Nurse Hammett, Officer Peacock, Lt. Perez, Major Curran, Cynthia Luna, an unnamed teacher at the Winham school whom plaintiff states is unstable, and officer Mario Lopez. None of these persons is a named defendant in this action. The Court notes plaintiff's JOHN DOE and SAM SAUAGES designations for unknown defendants are not sufficient to bring these persons into the present suit as plaintiff clearly knew their names.
Plaintiff's Step 2 grievance nos. 2002042235 and 2001161447 are the only grievances attached to his March 1, 2002, Questionnaire response which mention any of the named defendants, BAINES and MARKS. By these grievances, plaintiff appears to allege they failed to investigate plaintiff's complaints against nurses and doctors; however, this allegation is factually insufficient to state a claim on which relief can be granted.
Lastly, the Court notes the occasional reference plaintiff has made to racism by a few of the defendants; however, plaintiff has utterly failed to allege any incident, date, or fact to support this claim and, therefore, has failed to state a claim on which relief can be granted. Conclusory allegations lacking reference to material facts are not sufficient to state a claim of malice. Al-Ra'id v. Ingle, 69 F.3d 28 (5th Cir. 1995).
CONCLUSION
"[D]eliberate indifference to serious medical needs of prisoners constitutes the `unnecessary and wanton infliction of pain' . . . proscribed by the Eighth Amendment". Such indifference may be "manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). Though given an additional opportunity by way of the Briefing Order Questionnaire, plaintiff has utterly failed to allege facts stating any claim of deliberate indifference to his medical needs, or any other claim, against any one or more of the defendants. Further, many of his claims are barred by limitations and his failure to exhaust administrative remedies.
Pursuant to Title 28, United States Code, sections 1915A and 1915(e), as well as Title 42, United States Code, section 1997e, it is the RECOMMENDATION of the Magistrate Judge to the United States District Judge that the Civil Rights Complaint filed pursuant to Title 42, United States Code, section 1983, by plaintiff THOMAS JEFFERSON SIMS be DISMISSED WITH PREJUDICE AS FRIVOLOUS, AS BARRED BY FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES, AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
IT IS SO RECOMMENDED.
The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to each attorney of record by certified mail, return receipt requested.