IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

GEORGE NEAL WILLIAMS, #1002786, )

Plaintiff, )

)

v. ) 3:06-CV-0061-D

)

DOUGLAS DRETKE, et al., )

Defendant. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court filed

on June 6, 2006, Plaintiff’s June 5, 2006 pleading “To Show More Cause for Reinstatement” has

been referred to the United States Magistrate Judge. The findings, conclusions and

recommendation of the Magistrate Judge are as follows:

FINDINGS AND CONCLUSIONS:

On May 31, 2006, the District Court adopted the findings, conclusions and

recommendation of the undersigned Magistrate Judge over Plaintiff’s objections and dismissed

this case without prejudice for failure to exhaust administrative remedies pursuant to 42 U.S.C. §

1997e(a). The dismissal was premised on Plaintiff’s own assertion that he had not filed step 2

grievances and, as a result, had failed to exhaust his administrative remedies. 

In his pleadings filed on June 5, June 22, and July 10, 2006, Plaintiff seeks reinstatement

of this action because he is in the process of exhausting the second step of the grievance

procedure. The June 5, 2006 pleading alludes that Plaintiff recently received two of the step two

grievances back. The June 22, 2006 pleading outlines the additional steps that Plaintiff has taken

 

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1 The Supreme Court stated as follows: 

Because exhaustion requirements are designed to deal with parties who do not

want to exhaust, administrative law creates an incentive for these parties to do

what they would otherwise prefer not to do, namely, to give the agency a fair and

full opportunity to adjudicate their claims. Administrative law does this by

requiring proper exhaustion of administrative remedies, which “means using all

steps that the agency holds out, and doing so properly (so that the agency

addresses the issues on the merits). . . .” Proper exhaustion demands compliance

with an agency's deadlines and other critical procedural rules because no

2

to exhaust his administrative remedies. In the July 10, 2006 pleading, Plaintiff states that on

June 28, 2006, he submitted yet another step 2 grievance.

The Fifth Circuit Court of Appeals has construed § 1997e(a) to require “that

administrative remedies be exhausted before the filing of a § 1983 suit, rather than while the

action is pending.” Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998) (emphasis added). “To

hold otherwise would encourage premature filing by potential litigants, thus undermining

Congress’ purpose in passing the PLRA, which was to provide the federal courts some relief

from frivolous prisoner litigation.” Id. at 891 (citing Underwood v. Wilson, 151 F.3d 292, 296

(5th Cir. 1998)).

Plaintiff did not fully exhaust his administrative remedies, before filing the complaint in

this case on January 9, 2006. His own allegations in the June and July 2006 filings concede that

he only recently submitted step two grievances regarding the issues raised in the complaint. 

Under these circumstances, the Court cannot say that Plaintiff has properly exhausted his

administrative remedies. See Woodford v. Ngo, ___ U.S. ___, 2006 WL 1698937, *5 (Jun. 22,

2006) (holding that the Prison Litigation Reform Act (PLRA) exhaustion requirement requires

proper exhaustion of administrative remedies, namely “using all steps that the agency holds out,

and doing so properly (so that the agency addresses the issues on the merits).1

 

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adjudicative system can function effectively without imposing some orderly

structure on the course of its proceedings.

2006 WL 1698937, *5 (quoted case omitted) (emphasis in original).

3

RECOMMENDATION:

For the foregoing reasons, it is recommended that Plaintiff’s request for reinstatement of

this action, submitted in his pleadings filed on June 6, June 22, and July 10, 2006, be denied.

A copy of this recommendation will be mailed to Plaintiff.

Signed this 11th day of July, 2006.

____________________________________

WM. F. SANDERSON, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that

you must file your written objections within ten days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir.

1996) (en banc), a party's failure to file written objections to these proposed findings of fact and

conclusions of law within such ten-day period may bar a de novo determination by the district

judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds

of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court.

 

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