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UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
TERRY GLENN,
Plaintiff-Appellant,
v.
DONAL CAMPBELL, et al.,
Defendants-Appellees.
No. 01-6063
40 Fed. Appx. 21
March 28, 2002, Filed
NOTICE:
NOT RECOMMENDED FOR FULL-TEXT
PUBLICATION. SIXTH CIRCUIT RULE 28(g) LIMITS CITATION TO SPECIFIC SITUATIONS.
PLEASE SEE RULE 28(g) BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH
CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS
NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED.
Terry Glenn, a pro se Tennessee prisoner, appeals a district court order
and judgment dismissing without prejudice his civil rights action filed under
42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant
to Rule 34(j)(1), Rules of the Sixth Circuit. Upon examination, this panel
unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).
Seeking monetary damages and
injunctive relief, Glenn sued the commissioner (Campbell) and assistant
commissioner (Rose) of the Tennessee Department of Corrections; the warden
(Dukes), medical administrator (Thobe), and inmate relations coordinator
(Rourke) of West Tennessee State Penitentiary; thirteen John Does, including
unidentified doctors and corrections officers; and six Jane Does, including
unidentified nurses and nurse practitioners. His lengthy complaint alleged that
he received incompetent and inadequate medical care in violation of the Eighth
Amendment following an injury to his knee from a fall in his cell in June 2000.
In an order entered on July 9, 2001, the
district court initially dismissed the John and Jane Doe defendants, and then
concluded that Glenn's entire complaint should be dismissed without prejudice
pursuant to 42 U.S.C. § 1997e(a) for failing to exhaust his administrative
remedies as required before filing his suit in federal court. A separate
judgment was entered on July 12, 2001.
On appeal, Glenn argues that:
(1) the district court abused its discretion in dismissing the John and Jane
Doe defendants; (2) the district court erred in dismissing his action for
failure to exhaust administrative remedies; (3) the requirement that he pay the
filing fee in full constitutes cruel and unusual punishment; (4) the district
court erred in certifying that an appeal would not be taken in good faith; and
(5) the district court judges who denied this and another § 1983 complaint on
the same day conspired to deprive him of his rights. Glenn has filed a
motion for the appointment of counsel on appeal. He has also filed a pro se
appendix on appeal which includes documents that were not part of the district
court record and are, therefore, not properly before this court. See Fed. R.
App. P. 10(a).
Upon review, we conclude that the district court did not err in
dismissing Glenn's complaint. This court reviews de novo the district court's
dismissal of a civil rights action for failure to exhaust administrative
remedies. Curry v. Scott, 249 F.3d 493, 503 (6th Cir. 2001).
Pursuant to 42 U.S.C. §
1997e(a), a prisoner must exhaust all of his available administrative remedies,
even when requesting monetary damages, before filing in federal court a civil
rights action challenging the conditions of his confinement. Booth v. Churner, 532 U.S. 731, 735, 121 S.
Ct. 1819, 1825, 149 L. Ed. 2d 958 (2001); Wyatt v. Leonard, 193 F.3d 876,
878-79 (6th Cir. 1999); Brown v. Toombs, 139 F.3d 1102, 1103-04 (6th Cir.
1998). The prisoner has the burden of demonstrating that he has exhausted these
remedies. Brown, 139 F.3d at 1104.
Before the district court adjudicates any claim set forth in the plaintiff's
complaint, the court must determine that the plaintiff has complied with this
exhaustion requirement. Id. The
plaintiff must exhaust the procedures prior to filing suit and not while his
suit is pending in federal court. Freeman v. Francis, 196 F.3d 641, 645 (6th
Cir. 1999). To establish that he has exhausted his administrative remedies
prior to filing suit, a prisoner should attach to his § 1983 complaint any
decision demonstrating the administrative disposition of his claims. Wyatt, 193 F.3d at 878; Brown, 139 F.3d at
1104. The prisoner cannot "abandon the process before completion and claim
that he has exhausted his remedies or
that it is futile for him to do so because his grievance is now time-barred
under the regulations." Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir.
1999). "In the absence of particularized averments concerning exhaustion
showing the nature of the administrative proceeding and its outcome, the action
must be dismissed under § 1997e." Knuckles El v. Toombs, 215 F.3d 640, 642
(6th Cir.), cert. denied, 531 U.S. 1040, 148 L. Ed. 2d 542, 121 S. Ct. 634
(2000). This dismissal should be without prejudice. Wyatt, 193 F.3d at 879. Furthermore, "this Court has not
hesitated to enforce § 1997e, even where such enforcement results in the
dismissal of otherwise properly stated claims." Curry, 249 F.3d at 501
n.2.
Glenn's civil rights complaint
was properly dismissed without prejudice because he failed to demonstrate that
he had exhausted his administrative remedies prior to filing this action. The
district court did not err when it determined that Glenn's claims regarding the
grievances, unsupported by any documentation and involving no named defendants
were insufficient to satisfy the statute's requirements and permit
consideration of the complaint on the merits.
The
remaining issues raised by Glenn on appeal are meritless. The district court
did not err in dismissing the John and Jane Doe defendants, since they were
neither adequately identified nor served. See
Cox v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996). The in forma pauperis
provisions of the Prison Litigation Reform Act do not violate the
constitutional rights of prisoners. See Hampton v. Hobbs, 106 F.3d 1281,
1284-88 (6th Cir. 1997). As there is no legal basis for this appeal, the
district court properly found that an appeal would not be taken in good faith.
And there is absolutely no support for Glenn's theory that the district court
judges are conspiring against him.
Accordingly, Glenn's motion for the appointment of counsel is
denied. The district court's judgment is affirmed. Rule 34(j)(2)(C), Rules of
the Sixth Circuit.