The opinion of the court was delivered by: Simandle, District Judge
[relates to Docket Items 24 and 30]
This matter is before the Court upon Plaintiff's motions [Docket Items 24 and 30], brought pursuant to Rule 60(b), Fed. R. Civ. P., for relief from the Court's November 25, 2008 Opinion and Order [Docket Items 22 and 23], which dismissed his claims without prejudice. THIS COURT FINDS AS FOLLOWS:
1. Plaintiff Jose Lugo-Vazquez, proceeding pro se, is an inmate who is presently confined at the Federal Correctional Institution in Fort Dix, New Jersey ("FCI Fort Dix"). He filed this lawsuit pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that Warden Grondolsky failed to protect him from being attacked by a fellow prisoner and that the Medical Department at FCI Fort Dix provided him with inadequate medical care.
2. In particular, Plaintiff alleged that he was attacked by an unspecified inmate on January 13, 2008. (Compl. ¶ 3-1.) Plaintiff alleges that the attack took place because "there was no security to prevent [it,]... [b]eing that there is one correctional officer for... [every] three hundred and sixty inmates." (Id. at ¶ 3-2.) Plaintiff alleged that he suffered "severe damages to the skull and brain" as a result of the attack. (Id. at ¶ 3-1.) Since the attack, Plaintiff has experienced a seizure, severe headaches, and a loss of hearing in one ear, which conditions he alleges the prison's Medical Department failed to treat satisfactorily. (Id. at ¶¶ 3-4, 3-6.)
3. In his Complaint, Plaintiff conceded that he "did not seek administrative remedy in this case [d]ue to the [c]onstitutional magnitude of violations by the administration here at Fort Dix." (Id. at ¶ 3.) According to Plaintiff,
[t]he administrative remedy process will not aid in this case. The Warden Grondolsky, Dodrill the regional director, nor Washington[']s Central office Watts, will not admit through the remedy process that the Plaintiff's constitutional rights were violated. So therefore the remedy process will not aid the Court.
4. In its November 25, 2008 Opinion and Order [Docket Items 22 and 23], the Court granted Defendants' motion to dismiss the Complaint without prejudice on account of Plaintiff's failure to exhaust administrative remedies. The Court explained:
The [Prison Litigation Reform Act ("PRLA")] provides in relevant part that "[n]o 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). "As the statutory language makes clear, § 1997e(a) applies equally to § 1983 actions and to Bivens actions." Nyhuis v. Reno, 204 F.3d 65, 68 (3d Cir. 2000).... Under the Act, the exhaustion of all administrative remedies is mandatory, whether or not the inmate believes that such administrative remedies would be effective and even if the available administrative processes cannot grant the desired remedy. Booth v. Churner, 532 U.S. 731, 739-41 (2001)....
In view of Plaintiff's acknowledgment on the face of his Complaint that he elected not to file an administrative grievance form "[d]ue to the [c]onstitutional magnitude of violations by the administration here at Fort Dix," and because he believed that Defendants would not "admit through the remedy process that the Plaintiff's constitutional rights were violated," (Compl. ¶ 3), the Court agrees with Defendants that the Complaint must be dismissed in order to afford Plaintiff the opportunity to grieve this matter internally. The law is clear that "the PLRA exhaustion requirement requires proper exhaustion," whether or not the inmate believes that the remedial process will afford him the relief he seeks. [Woodford v. Ngo, 548 U.S. 81, 95 (2006)] (noting as well that "[t]he benefits of exhaustion can be realized only if the prison grievance system is given a fair opportunity to consider the grievance")....
The order of dismissal herein is without prejudice to Plaintiff's right to file a new complaint upon his exhaustion of available administrative remedies. (Docket Item 22 at 9-10, 12.)
5. Plaintiff has filed two motions [Docket Items 24 and 30], pursuant to Rule 60(b)(3) and (6), Fed. R. Civ. P., seeking relief from the Court's Opinion and Order. In his motions, Plaintiff states that after the Court granted Defendants' motion to dismiss, he attempted to exhaust the prison's administrative remedy process but that Defendants frustrated his efforts. In particular, Plaintiff asserts that he submitted an administrative remedy form which was returned to him because he had failed to state the relief he had requested, and that he submitted a second form which was returned to him with a request that he be more specific as to the matter he was complaining about. According to Plaintiff's submissions, Plaintiff believes that Defendants are frustrating his ability to exhaust the prison's administrative remedy process.
6. While the Court does not find that Rule 60(b) is the correct procedural vehicle to address the matters raised in Plaintiff's motions, see Mallory v. Eyrich, 922 F.2d 1273, 1277 (6th Cir. 1991) ("by its terms, Rule 60(b) applies only to final judgments"), the Court will permit Plaintiff ...