United States District Court, E.D. Texas, Tyler Division
ALVINO MENDOZA JR.
MEDICAL DEPARTMENT OF UNIT, ET AL.
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL
Clark, United States District Judge.
Plaintiff Alvino Mendoza, proceeding pro se, filed
this civil rights lawsuit under 42 U.S.C. §1983
complaining of alleged violations of her constitutional
rights. This Court referred the case to the United States
Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and
(3) and the Amended Order for the Adoption of Local Rules for
the Assignment of Duties to United States Magistrate Judges.
complained that on March 22, 2016, he was seen by the unit
doctor because of a swollen testicle. He was sent to the
local hospital for a sonogram, which showed an infection. The
hospital doctor ordered three different prescriptions and the
nurse told him to take the medications as ordered.
arrived back on the unit, however, the head nurse refused
Mendoza two of the three medications he was ordered. In a
copy of an unprocessed Step One grievance attached to the
complaint, Mendoza stated that the nurse told him he could
have the antibiotic but not the other two medications.
Mendoza stated that the grievance procedure was still in
process at the time he filed his lawsuit.
The Report of the Magistrate Judge
review of the pleadings, the Magistrate Judge issued a Report
recommending that the lawsuit be dismissed for failure to
exhaust administrative remedies. The Magistrate Judge
determined that pre-filing exhaustion is mandatory and
district courts lack discretion to excuse a prisoner's
failure to exhaust administrative remedies prior to filing
the lawsuit. Gonzalez v. Seal, 702 F.3d 785, 788
(5th Cir. 2012). Where the failure to exhaust is clear on the
face of the complaint, the district court may dismiss the
lawsuit without requiring an answer from the Defendants.
Dillon v. Rogers, 596 F.3d 260, 272 n.3 (5th Cir.
Magistrate Judge observed that Mendoza affirmatively stated
that he had not completed the exhaustion process at the time
he filed the lawsuit. See Johnson v. Johnson, 385
F.3d 503, 515 (5th Cir. 2004) (both steps of the TDCJ
grievance process must be completed to exhaust admnistrative
remedies). Thus, the Magistrate Judge determined that
Mendoza's lawsuit should be dismissed without prejudice.
response to the Magistrate Judge's Report, Mendoza filed
a “supplement to complaint” (docket no. 9) which
will be construed in the interest of justice as objections to
the Report. In these objections, Mendoza states that he has
now completed the exhaustion process, attaching copies of his
Step One and Step Two grievances. The Step Two grievance
response is dated May 27, 2016, which is over a month after
the lawsuit was signed.
Fifth Circuit has held as follows:
[D]istrict courts have no discretion to excuse a
prisoner's failure to properly exhaust the prison
grievance process before filing their complaint. It is
irrelevant whether exhaustion is achieved during the federal
proceeding. Pre-filing exhaustion is mandatory, and the case
must be dismissed if available administrative remedies were
Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012).
The record in this case shows and Mendoza's objections
acknowledge that he did not complete the exhaustion process
prior to filing his lawsuit. While he may have completed the
exhaustion process after filing the lawsuit, the Fifth
Circuit stated that this is irrelevant; the case must be
dismissed if available administrative remedies were not
exhausted prior to filing the lawsuit. The Magistrate Judge
properly recommended that the lawsuit be dismissed without
prejudice, and Mendoza's objections are without merit.