IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MICHAEL E. SIMMONS, : Plaintiffs, : v. : Civ. No. 21-1142-LPS DELAWARE DEPARTMENT OF : CORRECTION, etal, : Defendants. :

Michael D. Simmons, Howard R. Young Correctional Institution, Wilmington, Delaware. Pro Se Plaintiff.

MEMORANDUM OPINION

March 28, 2022 Wilmington, Delaware

ST U.S. Circuit Judge: I. INTRODUCTION Plaintiff Michael D. Simmons, an inmate at Howard R. Young Correctional Institution in Wilmington, Delaware, filed this action pursuant to

. (D.I. 3) Plaintiff appears pro se and has been granted leave to proceed im forma pauperis. (D.1. 12) He has filed numerous motions. (D.I. 5-11) The Court proceeds to screen the Complaint pursuant to

(e)(2)(B) and 1915A(a). II. BACKGROUND Plainuff alleges violations of the Americans with Disabilities Act, his nght to equal protection, and that he was subjected to cruel and unusual punishment, excessive use of force, and bodily injury and sexual assault, beginning in February 2020 and continuing as of the date he filed this action in early August 2021. When Plaintiff commenced this action, the grievance process was not complete. (D.I. 3 at 8) II. LEGAL STANDARDS A federal court may properly dismiss an action s#a sponte under the screening provisions of

(e)(2)(B) and § 1915A(b) if “the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief.” Bal! v. Famiglio,

(3d Cir. 2013); see also

(e)(2) (én forma pauperis actions); 28 U.S.C. § 1915A (actions in which prisoner seeks redress from governmental defendant); 42 U.S.C. § 1997e (prisoner actions brought with respect to prison conditions). The Court must accept all factual allegations in a complaint as true and take them in the light most favorable to a pro se plaintiff. See Phillips v. County of Allegheny,

(3d Cir. 2008); Erickson v. Pardus,

(2007). Because Plaintiff proceeds pro se, her pleading is liberally

construed and the Complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson,

(citations omitted). A complaint is not automatically frivolous because it fails to state a claim. See Dooley ». Wetzel,

(3d Cir. 2020) (citing Nettzke ». Wiliams,

(1989)); see also Grayson v. Mayriew State Hosp.,

(3d Cir. 2002). “Rather, a claim is frivolous only whete it depends ‘on an “indisputably meritless legal theory” or a “clearly baseless” or “fantastic or delusional” factual scenario. Dooley v. Wetzel,

(quoting Mitchell v. Horn,

(2003) and Neitzke,

). The legal standard for dismissing a complaint for failure to state a claim pursuant to § 1915(e)(2)(B) (a) and § 1915A(b)(1) is identical to the legal standard used when deciding Rule 12(b)(6) motions. See Tourscher v. McCullough,

(3d Cir. 1999) (applying Fed. R. Civ. P. 12(b)(6) standard to dismissal for failure to state claim under § 1915(e)(2)(B)). However, before dismissing a complaint or claims for failure to state a claim upon which relief may be granted pursuant to the screening provisions of

and 1915A, the Court must grant a plaintiff leave to amend, unless amendment would be inequitable or futile. See Grayson,

. A complaint may be dismissed only if, accepting the well-pled allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court concludes that those allegations “could not raise a claim of entitlement to relief.” Bel/ Ath Corp. v. Twombly,

(2007). Though “detailed factual allegations” are not required, a complaint must do more than simply provide “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Davis v. Abington Mem’! Hosp.,

(3d Cir. 2014) (internal quotation marks omitted). In addition, a complaint must contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face. See Wiliams v. BASF Catalysts LLC,

(3d Cir. 2014) (citing Asheroft ». Igbal,

(2009) and Twombly,

). Finally, a plaintiff must plead facts sufficient to show that a claim has substantive plausibility. See Johnson ». City of Shelby,

(2014). A complaint may not be dismissed for imperfect statements of the legal theory supporting the claim asserted. See éd. at 10. Under the pleading regime established by Twombly and Igbal, a court reviewing the sufficiency of a complaint must take three steps: (1) take note of the elements the plaintiff must plead to state a claim; (2) identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth; and (3) when there are well-pled factual allegations, the court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. See Connelly v. Lane Const. Corp.,

(3d Cir. 2016). Elements are sufficiently alleged when the facts in the complaint “show” that the plaintiff is entitled to relief. See Igba/,

(citing Fed. R. Civ. P. 8(a)(2)). Deciding whether a claim is plausible will be a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” [d IV. DISCUSSION Under the Prison Litigation Reform Act of 1996, a prisoner must pursue all available avenues for relief through the prison’s grievance system before bringing a federal civil rights action. See 42 U.S.C. § 1997e(a); Booth v. Churner,

, 741 n.6 (2001) (“[A]n inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues.”). Section 1997(e) provides that “[nJo action shall be brought with respect to prison conditions under section 1983 of the Revised Statutes of the United States, or any other Federal law, by a prisoner confined in any jail, prison, or other cortectional facility until such administrative remedies as are available are exhausted.”

(e). The exhaustion requirement is mandatory. See Wiliams v. Beard,

, 639 (3d Cir. 2007); Booth,

(holding that exhaustion requirement of PLRA applies to grievance procedures, “regardless of the relief offered through administrative procedures”). The limitations period for filing a § 1983 action is tolled during the period that a prisoner spends exhausting his administrative remedies. See Jones ». Unknown D.O.C. Bus Driver & Transportation Crew,

, 480 (3d Cir. 2019). There is no futility exception to § 1997e’s exhaustion requirement. See Nybuis ». Reno,

(3d Cir. 2000). An inmate must fully satisfy the administrative requirements of the inmate grievance process before proceeding into federal court. See Spruill v. Gilks,

Gd Cir. 2004); see also Oriakbi v. United States,

(3d Cir. 2006) (“[T]here appears to be unanimous circuit court consensus that a prisoner may not fulfill the PLRA’s exhaustion requirement by exhausting administrative remedies after the filing of the complaint in federal court”). Courts have concluded that inmates who fail to fully, or timely, complete the prison gtievance process are barred from subsequently litigating claims in federal court. See ¢.g., Booth v. Churner,

(3d Cir. 2000); Bolla v. Strickland,

(3d Cir. 2008). If the actions of prison officials directly caused the inmate’s procedural default on a grievance, the inmate will not be held to strict compliance with this exhaustion requirement. See Camp v. Brennan,

(3d Cir. 2000). In addition, an inmate’s failure to exhaust will be excused “under certain limited circumstances,” Harris v. Armstrong,

(3d Cir. 2005), and an inmate can defeat a claim of failure to exhaust by showing “he was misled or that there was some extraordinary reason he was prevented from complying with the statutory mandate.” Davis v. Warman,

, 368 3d Cir. 2002); see also Ross »v Blake,

(2016) (stating administrative procedure is not available when it operates as simple dead end; when it is so opaque that it becomes incapable of use; and when prison administrators thwart inmates from

advantage of grievance process through machination, misinterpretation, or intimidation). Also, “administrative remedies are not ‘available’ under the PLRA where a prison official inhibits an inmate from resorting to them through serious threats of retaliation and bodily harm.” Rinaldi v. United States,

(3d Cir. 2018). While exhaustion is an affirmative defense, the Court may sua sponte dismiss an action pursuant to § 1915A when the failure to exhaust defense is obvious from the face of the complaint. See Caiby v. Haidle,

, 65 (3d Cir. 2019). Plaintiff admits that the grievance process was not complete when he filed his Complaint. (D.I. 3 at 8) He states that he “immediately filed this complaint due to the physical injuries and while the assault was fresh in his mind. DOC has already attempted to downplay the attack and conventional wisdom says DOC will deny his grievance.” (Id) Given Plaintiffs admission in the Complaint that the grievance process was not complete when he filed this action, dismissal for failure to exhaust is warranted. The Complaint will be dismissed pursuant to

(e)(2)(B) and § 1915A(b)(1). V. CONCLUSION For the above reasons, the Court will: (1) dismiss the Complaint without prejudice, pursuant to

(e)(2)(B) and § 1915A(b)(1), for failure to exhaust administrative remedies; and (2) deny Plaintiffs motions (D.I. 5, 6, 7, 8, 9, 10, 11). An appropniate Order will be entered.