United States District Court, E.D. Texas, Lufkin Division
PEDRO A. GARCIA
JOHN P. BOLTON, et al.,
MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Clark, United States District Judge
Pedro A. Garcia, an inmate formerly confined at the Polunsky
Unit with the Texas Department of Criminal Justice,
Correctional Institutions Division, proceeding pro
se and in forma pauperis, filed this civil
rights action pursuant to 42 U.S.C. § 1983 against
defendants John P. Bolton, Sean R. Burks, Johnny R. Farris,
Patricia Garney, and Joseph Smith. Defendants Garney, Farris
and Smith filed a Joint Motion for Summary Judgment Limited
to Exhaustion of Administrative Remedies on August 15, 2017
(docket entry no. 24).
Court referred this matter to the Honorable Keith Giblin
United States Magistrate Judge, at Beaumont, Texas, for
consideration pursuant to applicable laws and orders of this
Court. The Magistrate Judge recommends defendants' motion
for summary judgment be denied.
Court has received and considered the Report and
Recommendation of United States Magistrate Judge filed
pursuant to such order, along with the records, and
pleadings. Defendants filed objections to the Report and
Recommendation of United States Magistrate Judge (docket
entry no. 40). This requires a de novo review of the
objections in relation to the pleadings and applicable law.
See Fed. R. Civ. P. 72(b).
argue that plaintiff's claims should be dismissed for
failure to properly exhaust administrative remedies as
plaintiff's Step 1 grievance was sixty (60) days late.
Defendants argue this despite the fact that the grievance
department responded to the grievance substantively and
failed to deny the grievance as untimely.
outlined by the Magistrate Judge, plaintiff's grievances
were accepted and processed as though they were timely. The
grievance department considered plaintiff's complaints
and responded to the grievance on the merits. As such, the
statutory exhaustion requirement is satisfied if prison
officials decide a procedurally flawed grievance on the
merits. Hammett v. Cofield, 681 F.3d 945, 947 (8th
Cir. 2012); Hill v. Curcione, 657 F.3d 116, 125 (2nd
Cir. 2011); Reed-Bey v. Pramstaller, 603 F.3d 322,
324-25 (6th Cir. 2010); Riccardo v. Raush, 375 F.3d
521, 524 (7th Cir. 2004); Eubanks v. Naik, 2014 WL
1117408, at *5 (S.D. Tex. Mar. 19, 2014); Sanchez v.
Kyle, 2016 WL 908937 * 3 (E.D. Tex. Jan. 22, 2016).
Supreme Court has stated that the benefits of the requirement
that administrative remedies be exhausted prior to the filing
of a lawsuit “include allowing a prison to address
complaints about the program it administers before being
subjected to suit, reducing litigation to the extent
complaints are satisfactorily resolved, and improving
litigation that does occur by leading to the preparation of a
use record.” Jones, 549 U.S. 199 (2007).
“These benefits are fully realized when an inmate
pursues the prison grievance process through its final stage
and receives an adverse decision on the merits, even if the
decision-maker could have declined to reach the merits
because of one or more procedural deficiencies. A complete
administrative record exists, and a reviewing court will have
the benefit of the agency's institutional
perspective.” Hammett, 681 F.3d at 947-48.
When a prison “treats a filing as timely and resolved
it on the merits, the federal judiciary will not second-guess
that action, for the grievance has served its function of
alerting the state and inviting corrective action.”
Ridcardo, 375 F.3d at 524.
plaintiff's Step 1 grievance was not filed in a timely
fashion, it was nevertheless considered on the merits. As a
result, plaintiff properly exhausted his administrative
plaintiffs objections are OVERRULED. The
findings of fact and conclusions of law of the Magistrate
Judge are correct, and the report of the Magistrate Judge is
Defendant Burks was served on August
22, 2017 and filed a Motion to Dismiss Pursuant to Federal
Rule of Civil Procedure 12(b)(6) (docket entry nos. 26 &
32). Service on defendant Bolton was returned unexecuted on