The opinion of the court was delivered by: Karen E. Schreier Chief Judge
NATURE AND PROCEDURE OF THE CASE
Plaintiff, Jeffrey Leisure, commenced this action seeking relief pursuant to 42 U.S.C. § 1983 alleging that defendants violated his constitutional rights when they denied him medical treatment in violation of the Eighth Amendment. Leisure alleges in his complaint as follows:
[I] [h]ave been to medical over 50 times in 15 months and they discontinued my pain meds and have done nothing to ease my pain.
[I] [h]ave been out to see [a] surgeon and was told surgery was needed, but yet the[y] still won't give me anything for pain management, or the surgery.
In an order dated July 5, 2011, this court determined that Leisure had properly stated a claim for relief under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and allowed him to proceed in forma pauperis. Defendants were served and now move to dismiss the action based upon Leisure's failure to exhaust his administrative remedies.
Defendants also allege that the matter should be dismissed as moot because Leisure is no longer subject to the conditions for which he seeks relief.
Under the Prisoner Litigation Reform Act (PLRA), a prisoner must exhaust his administrative remedies before he may file suit. The PLRA provides as follows:
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 exhausted. 42 U.S.C. § 1997e(a).
In discussing the requirement of exhaustion, the Eighth Circuit has held that when considering motions to dismiss for failure to exhaust under section 1997e(a), the district court must look to the time of filing, not the time the district court is rendering its decision, to determine if exhaustion has occurred. If exhaustion was not completed at the time of filing, dismissal is mandatory.
In support of defendants' assertion that Leisure has not exhausted his administrative remedies, defendants provide the affidavit of Diane Meyers, the Administrative Remedy Clerk for the Federal Prison Camp in Yankton, South Dakota. See Docket 15. The affidavit provides that an inmate must file a grievance at the institutional level, followed by an appeal to the regional level, and then an appeal to the General Counsel's Office in order for administrative ...