McWhorter v. Holley, No. 4:2017cv00564 - Document 9 (S.D. Tex. 2017)

Court Description: MEMORANDUM OPINION AND ORDER dismissing without prejudice 1 Complaint. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

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McWhorter v. Holley Doc. 9 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. -2- 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 -5- I t

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