Harper v. Jenkin , 179 F.3d 1311 ( 1999 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
07/01/99
THOMAS K. KAHN
No. 98-8813 CLERK
Non-Argument Calendar
________________________
D.C. Docket No. CV-698-11
CHARLES HARPER,
Plaintiff-Appellant,
versus
DR. JENKIN,
TOMMY REDDISH,
LOUISE CASON,
Defendants-Appellees.
__________________________
Appeal from the United States District Court for the
Southern District of Georgia
_________________________
(July 1, 1999)
Before TJOFLAT, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Section 1997e(a) of the Prison Litigation Reform Act (PLRA) provides that
“[n]o action shall be brought with respect to prison conditions under [42 U.S.C. §]
1983 . . . , or any other federal law, by a prisoner confined in any . . . prison . . . until
such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
This provision applies in this case because the prisoner, the appellant, filed his
complaint after the PLRA’s effective date.
Appellant is an inmate in the Georgia state prison system. He seeks both
monetary and injunctive relief on the ground that appellees, or one of them, violated
his Eighth (and Fourteenth) Amendment right to be free of cruel and unusual
punishment by refusing him needed medical treatment. Because appellant seeks such
relief, section 1997e(a) required that he exhaust his administrative remedies before
bringing suit.
Appellant has invoked the prison system’s administrative process; he has done
so by filing a grievance. His grievance has been denied, however, because it was
untimely. Appellant could appeal such denial (within the prison system); he
contends, however, that appeal would not be heard (because his grievance was
untimely). Given this circumstance, his argument continues, he has exhausted his
administrative remedies and, thus, the PLRA’s exhaustion requirement. We disagree.
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As the district court noted in disposing of this case, Georgia State Prison Inmate
Grievance Procedure No. 503.1 allows the grievance coordinator to waive the time
period for filing a grievance if “good cause” is shown. Since appellant has not sought
leave to file an out-of-time grievance, he cannot be considered to have exhausted his
administrative remedies. If we were to accept appellant’s position – that the filing of
an untimely grievance exhausts an inmate’s administrative remedies – inmates, such
as appellant, could ignore the PLRA’s exhaustion requirement and still gain access to
federal court merely by filing an untimely grievance.
In sum, we affirm the district court’s dismissal of appellant’s complaint without
prejudice for failure to exhaust his administrative remedies.
AFFIRMED.
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