FAIRBANKS v. JONES, (W.D.Tex. 2004)

XAVIER RODRIGUEZ, District Judge

On this date the Court considered the United States Magistrate Judge's Report and Recommendation (docket number 35) in the above numbered and styled cause, the Plaintiff's Objections to the Report and Recommendation (docket no. 39), and the Defendants' Response (docket no. 42). After careful consideration, the Court ACCEPTS the Magistrate's Recommendation, denies the Plaintiff's objections, and GRANTS the Defendants' Motion for Summary Judgment (docket no. 30).

Standard of Review

When a party objects to a Magistrate Judge's Report and Recommendation, the District Court conducts a de novo review. 28 U.S.C. § 636(b)(1).

Background

The Plaintiff was formerly an inmate of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID) and housed at the Dominguez State Jail. On June 22, 2000, a riot involving approximately 68 inmates took place in the Dominguez recreational yard. The Plaintiff was injured in the riot and subsequently was disciplined for "intentional participation" in the riot.

On June 19, 2002, the Plaintiff filed his Complaint alleging that the correctional officer defendants knew that the riot was imminent and failed to protect him during the riot in violation of 42 U.S.C. § 1983. He further alleged that the defendants' conduct was unreasonable and constituted "deliberate indifference toward [his] personal safety" in violation of the Eighth Amendment.

In his Complaint, the Plaintiff named Messrs. Jones, Guerra, Johnson, Rios and DeLaGarza as defendants. Defendants Jones, Guerra and Johnson have appeared in this case and filed the motion for summary judgment at issue here. The record does not reflect that service was ever properly made upon Rios and DeLaGarza.

In their motion for summary judgment, the defendants argue that summary judgment is proper because the Plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). Further, the Defendants argue: (1) the Plaintiff's claims are not viable under section 1983; (2) the Defendants are immune to the Plaintiff's claim for damages under section 1983 in their official capacities; and (3) they are entitled to qualified immunity.

On July 15, 2003, the Magistrate Judge filed her Report and Recommendation concluding that the Plaintiff's claims should be dismissed without prejudice because he failed to exhaust his administrative remedies. To the extent that the Plaintiff's Complaint could be read as an attempt to challenge the disciplinary action levied against him after the riot, the Magistrate Judge recommended dismissal without prejudice, citing Heck v. Humphrey, 512 U.S. 477 (1994). Finally, the Magistrate Judge recommended that the claims against Rios and DeLaGarza be dismissed without prejudice for failure to prosecute such claims.

On August 4, 2003, the Plaintiff filed his Objections to the Magistrate's Report and Recommendation. Plaintiff argues: (1) TDCJ-ID's requirement that grievances be filed within 15 days is vague and unconstitutional because section 1983 possesses a 2-year limitations period; and (2) he was not aware of the 15 day requirement because TDCJ-ID fails to post this requirement.

ANALYSIS

A. The Prison Litigation Reform Act (PLRA)

The Prison Litigation Reform Act provides in relevant part: "[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 to any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a).

The exhaustion requirement is mandatory and "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516 (2002). A prisoner must complete the administrative process, "regardless of the relief offered through administrative procedures." Booth v. Churner, 532 U.S. 731 (2001). Accordingly, a prisoner may file a civil action relating to conditions of confinement under federal law only after he has exhausted the prison's administrative remedies. See Jackson v. Dist. of Columbia, 254 F.3d 262, 269 (D.C. Cir. 2001); Johnson v. Dist. of Columbia Dep't of Corrections, 2002 WL 1349532 (D.C. Cir. 2002) (complaint properly dismissed without prejudice when plaintiff alleged that he had not filed a grievance).

The failure to exhaust administrative remedies is not an absolute bar but rather a condition precedent to the filing of a lawsuit. Dismissals for failure to exhaust are therefore without prejudice, leaving the plaintiff free to re-file his complaint after he exhausts whatever administrative procedures are available. See Ali v. Dist. of Columbia, 278 F.3d 1, 5-6 (D.C. Cir. 2002); Jackson v. Dist. of Columbia, 254 F.3d 262 (D.C. Cir. 2001).

B. Plaintiff's challenge that the PLRA is unconstitutional

42 U.S.C. § 1997e(a) requires a prisoner to exhaust administrative remedies prior to filing suit. Plaintiff argues that 42 U.S.C. § 1997e(a) is unconstitutional because 42 U.S.C. § 1983 claims are subject to a two-year limitations period, but he is required to file a grievance within 15 days. The TDCJ-ID grievance form indicates that if an inmate is dissatisfied with the answer given in response to a "Step 1" grievance, an inmate "may submit a Step 2 (I-128) to the Unit Grievance Investigator within 15 days from the Step 1 response." Plaintiff's constitutional argument is without merit. 42 U.S.C. § 1997e(a) merely requires a prisoner to exhaust administrative remedies prior to filing suit. It does not serve as any jurisdictional bar. Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998), cert. denied, 526 U.S. 1133 (1999). With regard to the Plaintiff's argument that he failed to file a Step 2 grievance within the requisite 15 days because prison officials failed to post this fact, the Court notes that the Defendants' summary judgment evidence clearly indicates that the Plaintiff filed a step 1 grievance, and included within that grievance were clear instructions that step 2 grievances were required to be filed within 15 days. Accordingly, plaintiff's objection is without merit.

CONCLUSION

The Court ACCEPTS the Magistrate's Recommendation, DENIES the Plaintiff's objections, and GRANTS the Defendants' Motion for Summary Judgment (docket no. 30). Plaintiff's petition is DISMISSED without prejudice.