IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

 DALLAS DIVISION

ISMAEL PADILLA, #356764, )

Plaintiff, )

)

v. ) 3:05-CV-1206-B

)

TDCJ-CID, )

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 court in

implementation thereof, this case has been referred to the United States Magistrate Judge. The

supplemental findings, conclusions and recommendation of the Magistrate Judge, as evidenced

by his signature thereto, are as follows:

FINDINGS AND CONCLUSIONS:

Plaintiff filed this unspecified civil action on June 13, 2005, in the form of a letter

addressed to this court, complaining about the mail policies presently in effect at the Texas

Department of Criminal Justice – Correctional Institutions Division (TDCJ-CID). Plaintiff is

presently incarcerated at the Estelle Unit of TDCJ-CID in Huntsville, Texas. 

The court has not issued process in this case. However, on June 21, 2005, the court

issued a notice of deficiency and order directing Plaintiff to submit a motion for leave to proceed

in forma pauperis. As of the date of filing of this recommendation, Plaintiff has not responded

to the deficiency order. 

Presently before the court is Plaintiff’s motion requesting a stay of action pending

 

 Case 3:05-cv-01206-B Document 4 Filed 07/11/05 Page 1 of 3 PageID 15
2

exhaustion of administrative remedies, filed on July 5, 2005. 

Although exhaustion under 42 U.S.C. § 1997e(a) is not jurisdictional, Underwood v.

Wilson, 151 F.3d 292, 293-95 (5th Cir. 1998), it is mandatory. Porter v. Nussle, 534 U.S. 516,

524 (2002); Booth v. Churner, 532 U.S. 731, 741 (2001). Section 1997e(a) specifically

provides: 

No 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). 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 has not raised any valid excuse for failing to exhaust his available administrative

remedies before filing the letter complaint in this case. In light of the statutory mandate of §

1997e(a), the District Court should deny Plaintiff’s motion requesting a stay of this action

pending exhaustion of administrative remedies. 

RECOMMENDATION:

For the foregoing reasons, it is recommended that Plaintiff’s motion requesting a stay of

this action pending exhaustion of administrative remedies should be denied, and that the 

 

 Case 3:05-cv-01206-B Document 4 Filed 07/11/05 Page 2 of 3 PageID 16
3

complaint should be dismissed without prejudice for failure to exhaust administrative remedies.

A copy of this recommendation will be mailed to Plaintiff Ismael Padilla, #356764,

TDCJ Estelle Unit, 264 FM 3478, Huntsville, Texas 77320-3320.

Signed this 11th day of July, 2005.

____________________________________

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.

 

 Case 3:05-cv-01206-B Document 4 Filed 07/11/05 Page 3 of 3 PageID 17