The opinion of the court was delivered by: Lawrence E. Kahn, United States District Judge
This matter comes before the Court following a Report-Recommendation filed on December 19, 2002, by the Honorable David E. Peebles, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and L.R. 72.3(c) of the Northern District of New York.
Within ten days, excluding weekends and holidays, after a party has been served with a copy of a Magistrate Judge's Report-Recommendation, the party "may serve and file specific, written objections to the proposed findings and recommendations," Fed.R.Civ.P. 72(b), in compliance with L.R. 72.1. In the interval of at least 15 days since the Magistrate Judge filed the subject Report-Recommendation, no objections to it have been raised.*fn1 Furthermore, for the reasons given below, the Court has determined that the Report-Recommendation is not subject to attack for plain error or manifest injustice. Therefore, the Court adopts the Report-Recommendation for the reasons stated therein.
As explained in the Report-Recommendation, Plaintiff Renard Law ("Plaintiff") brought this action pursuant to 42 U.S.C. § 1983. He alleges that between November 1999 and September 2001 his constitutionally protected rights were violated on a number of occasions, by a number of individuals, at four different correctional facilities. Defendants moved to dismiss Plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) on the grounds that Plaintiff failed to exhaust his administrative remedies with respect to some of the claims that are included in this § 1983 action. In his response to Defendants motion, Plaintiff concedes that he has not exhausted his administrative remedies with respect to at least one of his claims.
The Prison Litigation Reform Act of 1995 ("PLRA") states:
No action shall be brought with respect to prison
conditions under section 1983 of this title, or any
other Federal law, by a prisoner confined in any
jail, prison, or other correctional facility until
such administrative remedies as are available are
42 U.S.C. § 1997e(a). The question presented here is whether a complaint that asserts exhausted and unexhausted claims should be dismissed in its entirety under the PLRA. Courts are divided on this issue. See Nelson v. Rodas, No. 01-CIV-7887, 2002 WL 31075804, at *2-3 (S.D.N.Y. Sept. 17, 2002) (Peck, M.J., Report and Recommendation) (collecting cases). This Court agrees with those decisions that hold that 42 U.S.C. § 1997e(a) requires plaintiffs to exhaust all of the claims that are brought in a § 1983 complaint. Failure to "totally exhaust" requires dismissal of the complaint without prejudice.
As other courts have pointed out, the plain language of § 1997e(a) supports this conclusion. See, e.g., Rivera v. Whitman, 161 F. Supp.2d 337, 340-41 (D.N.J. 2001); Saunders v. Goord, 2002 WL 1751341, at *3 (S.D.N.Y. July 29, 2002). Section 1997e(a) provides that a prisoner may not bring a § 1983 action with respect to prison conditions until he or she has exhausted all available administrative remedies. 42 U.S.C. § 1997e(a). In the instant case, Plaintiff is attempting to bring a § 1983 action with respect to prison conditions before he has exhausted all available administrative remedies. His complaint must therefore be dismissed without prejudice. See Saunders, 2002 WL 1751341, at *3 (dismissing without prejudice complaint that asserts exhausted and unexhausted claims).
Accordingly, it is hereby
ORDERED, that the Report-Recommendation is APPROVED and ADOPTED in its ENTIRETY; and it is further
ORDERED, that Defendants' motion to dismiss (Docket No. 76) is GRANTED; and it is further
ORDERED, that Plaintiff's complaint is DISMISSED in its entirety without prejudice; and it is further
ORDERED, that the Clerk serve a copy of this order on all ...