Richbourg v. Horton ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 2, 2008
No. 08-10443
Summary Calendar Charles R. Fulbruge III
Clerk
DANIEL JOSEPH RICHBOURG, JR
Plaintiff-Appellant
v.
DANNY R HORTON, RICHARD E WATHEN; OSCAR E PAUL; MR
MCGRATH; G ISENBERG
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:06-CV-184
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Daniel Joseph Richbourg, Jr., Texas prisoner # 609149, appeals the district
court’s judgment dismissing his 42 U.S.C. § 1983 retaliation claims for failure
to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a). Richbourg
argues that it was not possible for him to exhaust administrative remedies
challenging both disciplinary proceedings and acts of retaliation by prison
officers.
*
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should not be published and is not precedent except under the limited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.
No. 08-10443
We review de novo a dismissal under § 1997e of a § 1983 complaint when
the dismissal is for failure to exhaust administrative remedies. Hutchins v.
McDaniels, 512 F.3d 193, 195 (5th Cir. 2007). The Prison Litigation Reform Act
(PLRA) requires prisoners to exhaust administrative remedies prior to filing a
§ 1983 complaint challenging prison conditions. 42 U.S.C. § 1997e(a); Woodford
v. Ngo, 548 U.S. 81, 88-89 (2006). Exhaustion must be proper, meaning that the
prisoner must comply with state procedural requirements, including filing
deadlines. Woodford, 548 U.S. at 90-91, 93-94.
The Texas Department of Criminal Justice Offender Orientation
Handbook provides a two-step procedure for presenting administrative
grievances. Step 1 requires the prisoner to submit an administrative grievance
at the institutional level within fifteen days of the incident. See Wendell v.
Asher, 162 F.3d 887, 891 (5th Cir. 1998)(overruled by implication on other
grounds by Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910, 920-21 (2007)). Step 2
permits the prisoner to submit an appeal to the division grievance investigation
with the TDCJ. Id. Generally, pursuant to prison regulations, only one
grievance can be filed every seven days, and only one issue can be raised in each
grievance.
Richbourg’s arguments that it was not possible for him to timely exhaust
administrative remedies regarding the retaliation claims are not supported by
the record. Richbourg does not challenge the correctness of the district court’s
findings that he was aware of his retaliation claims by December 9, 13, or 16, at
the latest. Richbourg provides no valid explanation for waiting for the
conclusion of the disciplinary proceedings to file a retaliation grievance.
Richbourg could have filed a retaliation grievance on December 13 and would
still have had time to file a timely grievance concerning the disciplinary action
seven days later.
Further, a review of the Texas Department of Criminal Justice Offender
Orientation Handbook reflects that the regulations provide for an exception that
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No. 08-10443
includes disciplinary grievances to the seven-day rule. Thus, it appears that the
seven-day rule did not apply to Richbourg’s grievances concerning the
disciplinary proceeding. Additionally, based on Richbourg’s answers to the
questionnaire, alleged acts of retaliation also occurred during the disciplinary
hearing and in the manner in which his grievances were handled. Thus,
Richbourg could have filed grievances about those acts that occurred on a later
date and failed to do so.
The record reflects that Richbourg was not precluded from filing the
grievances as a result of the prison officers devising procedural requirements
designed to trap Richbourg and defeat his claims. Woodford, 548 U.S. at 102.
Richbourg admits that he made no attempt to file grievances with respect to the
retaliation claims. The district court did not err in dismissing the retaliation
claims for failure to exhaust administrative remedies. Insofar as Richbourg is
seeking injunctive relief, an inmate must exhaust his remedies irrespective of
the form of relief sought, injunctive or monetary. Wright v. Hollingsworth, 260
F.3d 357, 358 (5th Cir. 2001).
Richboug argues that the district court should have considered his
exhausted claims and that it erred in applying Heck v. Humphrey, 512 U.S. 477(1994) to his claims concerning the disciplinary proceeding. “[T]he mandate rule
is a corollary of the law of the case doctrine, it . . . forecloses relitigation of issues
expressly or impliedly decided by the appellate court.” General Universal
Systems, Inc. v. Hal, Inc., 500 F.3d 444, 453 (5th Cir. 2007) (internal quotations
and citations omitted). This court affirmed the denial of Richbourg’s claims
involving the disciplinary action and the penalties imposed and remanded the
case for further consideration of only the retaliation claims. Id. Therefore,
under the law of the case doctrine, neither the district court nor this court could
reexamine Richbourg’s arguments concerning the disciplinary proceedings or the
penalties imposed as a result of those proceedings. See St. Paul Mercury Ins. Co.
v. Williamson, 332 F.3d 304, 309 (5th Cir. 2003).
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No. 08-10443
The dismissal of the complaint for failure to exhaust is AFFIRMED.
Richbourg’s motions for the appointment of counsel and for discovery of
documents are DENIED.
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