Mark Hanna v. Bossier Parish Corrtl Center , 624 F. App'x 186 ( 2015 )

Case: 14-30845 Document: 00513176910 Page: 1 Date Filed: 09/01/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-30845
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
September 1, 2015
MARK HANNA,
Lyle W. Cayce
Clerk
Plaintiff-Appellant
v.
DEPUTY BRAD ANDERSON, Commission #1254; DEPUTY BONACCI,
Commission #1156; DEPUTY GOLDEN, Commission #1207; DEPUTY BEAN,
Commission #1290; SHERIFF OF BOSSIER PARISH; DEPUTY BOWLES,
Commission #403; RODNEY BOYER; CHARLES GRAY,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:12-CV-494
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
Mark Hanna, former Louisiana prisoner # 132872/1387, appeals the
district court’s summary judgment dismissal of his 42 U.S.C. § 1983 action,
wherein he alleged that the defendants violated his constitutional rights by
using excessive force. The district court based its ruling on Hanna’s failure to
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 14-30845
exhaust his administrative remedies pursuant to the Prison Litigation Reform
Act (PLRA), 42 U.S.C. § 1997e(a). In this court, Hanna raises the issues below
and seeks en banc consideration of his appeal.
First, Hanna challenges the summary judgment dismissal of his § 1983
action for failure to exhaust. It is undisputed that Hanna did not exhaust his
administrative remedies. Hanna, however, contends that he was excused from
exhausting such remedies because he was released from the Bossier Parish
Correctional Center (BPCC) about 16 hours after the alleged excessive force
incident and re-incarcerated about five months later at a different facility.
Additionally, he contends that he could not have filed his grievance before his
release from the BPCC because, during the hours after the alleged incident, he
did not have access to any writing materials or the inmate handbook; his copy
of the inmate handbook was confiscated when he was released from the BPCC;
he never returned to the BPCC; he filed his § 1983 complaint months later
during his incarceration at a different facility; the language in the BPCC was
written in such a way that led him to believe that released prisoners did not
have to file a grievance; the remedy was thus unavailable to him even though
he was generally aware that the remedy existed at the BPCC; and only a jury
should decide whether exhaustion has occurred.
District courts may act as the factfinder and resolve disputed facts
concerning exhaustion without the participation of a jury. Dillon v. Rogers,
596 F.3d 260, 272 (5th Cir. 2010). Hanna’s claims are unavailing given that
he received a copy of the inmate handbook, which contained the BPCC’s
grievance procedure; was generally aware of the procedure, which included a
section addressing discharged prisoners; and made no effort at all to file a
grievance. See Williams v. Henagan, 595 F.3d 610, 618-19 (5th Cir. 2010);
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Ferrington v. La. Dep’t of Corrs., 315 F.3d 529, 532 (5th Cir. 2002); Gonzalez v.
Crawford, 419 F. App’x 522, 523 (5th Cir. 2011).
Hanna further contends that the exhaustion requirement is
unconstitutional and that the BPCC exhaustion requirement is problematic
because it vests prison officials with discretion to receive and process
grievances when these officials have an incentive to undermine the grievance
proceeding. We decline to consider these claims. See Finley v. Johnson, 243
F.3d 215, 219 n.3 (5th Cir. 2001); Leverette v. Louisville Ladder Co., 183 F.3d
339, 342 (5th Cir. 1999).
Second, Hanna challenges the denial of his discovery motions. He argues
that he was entitled to the documents he sought; the denial of the motions
constituted error; the magistrate judge exceeded the authority provided under
Federal Rule of Civil Procedure 72 in ruling on the discovery motions; the
denial of the motions was the result of judicial bias and constituted an abuse
of discretion; and the defendants provided inadequate reasons for seeking to
limit discovery. Because Hanna has not shown that the requested discovery
would create a genuine dispute as to any material fact regarding the
exhaustion issue, there was no abuse of discretion in the denial of his discovery
motions. See Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010). Hanna’s
claim regarding the magistrate judge’s consideration of his discovery motions
is likewise unavailing. See FED. R. CIV. P. 72(a); 28 U.S.C. § 636(b)(1)(A);
Merritt v. Int’l Bhd. of Boilermakers, 649 F.2d 1013, 1018 (5th Cir. Unit A June
1981).
Third, Hanna argues that, in denying his motion to change venue, the
district court erroneously emphasized issues such as the convenience of the
parties and determining whether there was another venue where his § 1983
action might have been brought rather than focusing on assisting him with
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finding an unbiased tribunal. As proof of the bias against him, Hanna
discusses various adverse rulings during his § 1983 proceedings. His
assertions are insufficient to show an abuse of discretion. See Liteky v. United
States, 510 U.S. 540, 555 (1994); Opiyo v. Musgrave, 574 F. App’x 491, 493 (5th
Cir.), cert. denied, 135 S. Ct. 880 (2014).
Fourth, Hanna challenges this court’s denial of his petition for
mandamus. Hanna presented his mandamus request in an earlier, original
proceeding in this court. One panel of this court cannot overrule another
panel’s decision “in the absence of an intervening contrary or superseding
decision by this court sitting en banc or by the United States Supreme Court.”
Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999). As there
has been no intervening Supreme Court decision or en banc ruling, Hanna
cannot challenge the earlier panel’s ruling in his instant appeal.
Fifth, Hanna requests en banc consideration of his appeal. Because
Hanna has not complied with this court’s rules regarding petitions for hearing
en banc or satisfied the standard for an en banc hearing, his request is
DENIED. See 5TH CIR. R. 35.2; FED. R. APP. P. 35(a), (b).
In light of the foregoing, the judgment of the district court is AFFIRMED.
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