United States District Court, E.D. Arkansas, Little Rock Division
March 26, 2015
LARRY IRWIN FOSTER, JR. ADC #158728 Plaintiff,
TIFFANY EICHLER, Defendant.
PROPOSED FINDINGS AND RECOMMENDATIONS INSTRUCTIONS
JERRY W. CAVANEAU, Magistrate Judge.
The following recommended disposition has been sent to United States District Judge Billy Roy Wilson. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. Your objections must be received in the office of the United States District Court Clerk no later than fourteen (14) days from the date of the findings and recommendations.
Plaintiff Larry Irwin Foster, Jr., filed a pro se complaint, pursuant to 42 U.S.C. § 1983, on January 2, 2015, alleging that he was denied adequate medical care at the Saline County Detention Facility. On January 28, 2015, Defendant Tiffany Eichler filed a motion to dismiss, along with a brief in support (docket entries #10 & #11). Plaintiff filed a response on February 5, 2015 (docket entry #13).
I. Standard of review
FED.R.CIV.P. 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." In Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007) (overruling Conley v. Gibson, 355 U.S. 41 (1967), and setting new standard for failure to state a claim upon which relief may be granted), the Court stated, "a plaintiff's obligation to provide the grounds' of his entitle[ment]to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.... Factual allegations must be enough to raise a right to relief above the speculative level, " citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). A complaint must contain enough facts to state a claim to relief that is plausible on its face, not merely conceivable. Twombly at 570.
Nevertheless, in Erickson v. Pardus, 551 U.S. 89, 94 (2007), the Supreme Court emphasized that when ruling upon a motion to dismiss in a § 1983 action, a pro se complaint must be liberally construed and held to less stringent standards than formal pleadings drafted by lawyers. However, such liberal pleading standards apply only to a plaintiff's factual allegations. Neitzke v. Williams, 490 U.S. 319, 330 n. 9 (1989).
Defendant asserts that Plaintiff's complaint should be dismissed because he failed to exhaust his administrative remedies before he filed this lawsuit, and that his claims against her in her official capacity should be dismissed because he failed to identify a constitutionally deficient corporate policy or custom. Because Plaintiff failed to exhaust his administrative remedies before he filed this lawsuit, Defendant's motion should be granted.
Lack of exhaustion is an affirmative defense, which must be proved by defendants, and need not be pleaded by the plaintiff. Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir. 2005)(per curiam). The Prison Litigation Reform Act ("PLRA") "requires a prisoner to exhaust such administrative remedies as are available' before suing over prison conditions." Booth v. Churner, 532 U.S. 731, 733-34 (2001). The Eighth Circuit has reaffirmed that the exhaustion process must be fully completed prior to filing suit, and, if not, dismissal is "mandatory." Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003).
As Defendant notes, in his complaint, Plaintiff concedes that he has not exhausted his administrative remedies, and that his grievances(s) pertaining to the issues in this lawsuit are "in process" (docket entry #2, page #4). Plaintiff's response to Defendant's motion provides no reason to doubt the validity of the assertion made in his complaint, or to cause the Court to believe his lack of exhaustion should be excused. Accordingly, Plaintiff's complaint should be dismissed due to his failure to exhaust his administrative remedies before he filed this lawsuit. In light of this recommendation, Plaintiff's motion for settlement (docket entry #14) should be denied as moot.
IT IS THEREFORE RECOMMENDED THAT:
1. Defendant's motion to dismiss (docket entry #10) be GRANTED, and Plaintiff's complaint be DISMISSED WITHOUT PREJUDICE.
2. Plaintiff's motion for settlement (docket entry #14) be DENIED AS MOOT.
3. The Court certify that an in forma pauperis appeal taken from the order and judgment dismissing this action is considered frivolous and not in good faith.