The opinion of the court was delivered by: Reggie B. Walton, United States District Judge
MEMORANDUM OPINION AND ORDER
Defendants have filed a motion for judgment on the pleadings or for summary judgment on the ground that plaintiff has failed to exhaust his administrative remedies. *fn1 In opposition, plaintiff argues that there are genuine questions of fact as to whether the defendant's grievance procedure applies to plaintiff's claim, whether defendants have provided sufficient evidence that plaintiff did not exhaust his administrative remedies, and whether the Inmate Grievance Procedure remains available to plaintiff to pursue at this time. After review of the motion, plaintiff's opposition, defendant's reply, and the applicable law, it appears that plaintiff did not exhaust his administrative remedies prior to filing the complaint in this case. Before an order is entered on defendants' motion, however, defendant District of Columbia will be directed to provide further information regarding available administrative remedies.
At the time of the incident about which plaintiff complains he was a prisoner of the District of Columbia Department of Corrections, housed at the Central Facility at the Lorton Correctional Complex. The complaint alleges that plaintiff suffered serious and permanent injuries as a result of an assault by other inmates in July 1997, at a time when no guards were on duty at several posts and therefore could not prevent or stop the assault. Plaintiff alleges that the assault and his injuries were the result of defendants' failure to train and supervise correctional officers assigned to guard posts, failure to provide adequate staffing at guard posts, and deliberate indifference to unreasonably unsafe conditions at the facility.
The Prison Litigation Reform Act provides in relevant part:
[n]o action shall be brought with respect to prisonconditions under section 1983 of this title, or any other Federal law, by a prisoner confined to any jail, prison, or other correctional facility until suchadministrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a).
The exhaustion requirement is mandatory and "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, ___, 122 S. Ct. 983, 992 (2002). A prisoner must complete the administrative process, "regardless of the relief offered through administrative procedures." Booth v. Churner, 532 U.S. 731, 741 (2001). Accordingly, a prisoner may file a civil action relating to conditions of confinement under federal law only after he has exhausted the prison's administrative remedies. See Jackson v. District of Columbia, 254 F.3d 262, 269 (D.C. Cir. 2001); cf. Johnson v. District of Columbia Dep't of Corrections, 2002 WL 1349532 (D.C. Cir. 2002) (complaint properly dismissed without prejudice when plaintiff alleged that he had not filed a grievance).
In support of their motion, defendants have submitted an affidavit from Dennis Harrison, currently the Deputy Warden for Programs at the Department of Corrections and, from February 2000 to January 2002, the Warden of Central Facility at Lorton. *fn2 Harrison states that from his review of plaintiff's institutional file, the Inmate Grievance files, and Housing Reviews, "it appears that plaintiff did not file an Inmate Grievance Form relating to the July 19, 1997, alleged attack." Id. ¶¶ 5, 6. Harrison accordingly concludes that "[u]pon information and belief, Eudon Barnard did not exhaust his administrative remedies in connection with the July 19, 1997, incident." Id. ¶ 8.
Plaintiff does not challenge Harrison's conclusion but argues that the grievance procedure did not cover the kind of claims he raises, and, alternatively, that there may be no procedure available to him now as a result of the closing of the Lorton Correctional Complex. As support for his first position, plaintiff has provided a copy of a Department of Corrections Order dated May 4, 1992, which describes the Inmate Grievance Procedure. A grievance is defined in this Order as:
A written complaint filed by an inmate on his/her own behalf regarding a policy applicable within a correctional institution, a condition in a correctional institution, an action involving an inmate in a correctional institution, or an incident occurring within a correctional institution. The term 'grievance' does not include complaints relating to parole decisions, decisions of the Adjustment/Housing Boards pursuant to the Lorton Regulations Approval Act, Classification Committee decisions, requests under Freedom of Information Acts, Inmate Accident Claims, Tort Claims, and grievances filed on behalf of other inmates. Plaintiff's Opposition, Exhibit 3, ¶ VI (B)(emphasis added). *fn3
The Order provides that an inmate who has
"a dispute or complaint" should first attempt to resolve "this situation" informally, by discussing the complaint "withthe relevant parties or an appropriate DCDC employee." Id. ¶ VI(F)(1). If the complaint is not resolved informally, the inmate "may file a formal grievance by completing IGP Form 1." Id. ¶ VI(F)(2). The Order further provides that "[e]ach formal grievance must be filed within fifteen (15) calendar days of the incident that precipitates the filing of a grievance." Id. ¶ VI(F)(3). "Under extraordinary circumstances," however, "an extension of the filing period may be granted." Id. Such requests are to be submitted to the Institution Administrator and shall be acted upon within six calendar days. Id. ¶ VI(F)(4). There is a procedure for appealing the decision rendered on a grievance. Id. ¶ VI(G).
Plaintiff alleges that the failure to train and supervise prison guards adequately and the failure to adequately staff control posts resulted in conditions at the Central Facility "posing substantial and obvious risks of violent harm" to inmates. Complaint, ¶ 44. Although alleging a constitutional tort, the complaint essentially challenges conditions at the facilityand thus was covered by the grievance procedure. Because plaintiff was hospitalized for several days following the assault and thereafter was involved in housing hearings and his transfer to the Maximum Security Facility, he may have been unable to seek informal resolution of his complaint or to file a formal grievance within fifteendays of the assault. *fn4 The record does not contain any information about what the administrator of the institution would consider "extraordinary circumstances" that would justify an extension of the filing period.
The failure to exhaust administrative remedies is not an absolute bar but rather a condition precedent to the filing of a lawsuit. Dismissals for failure to exhaust are therefore without prejudice, leaving the plaintiff free to re-file his complaint after he exhausts whatever administrative procedures are available. See Ali v. District of Columbia, 278 F.3d 1, 5-6 (D.C. Cir. 2002); Jackson v. District of Columbia, 254 F.3d 262 (D.C. Cir. 2001). Thus, if there are now no grievance procedures available to plaintiff, it would be futile to dismiss this case without prejudice to allow plaintiff to exhaust his non-existent administrative remedies. Therefore, defense counsel is directed to advise the Court and plaintiff's counsel whether administrative remedies are now available to a former inmate at the Lorton Correctional Complex, the procedure for exhausting those remedies if they exist, and if administrative remedies are not currently available, what if any impact that has on plaintiff's ...