Wendell v. Asher , 162 F.3d 887 ( 1999 )

Revised December 30, 1998
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-41291
Summary Calendar
CHANDLER WENDELL, JR.,
Plaintiff-Appellant,
VERSUS
LLOYD ASHER, Correctional Officer; WILLIAM PITTMAN,
Correctional Officer; BILLYE FORREST, Correctional
Lieutenant; RICKY TARVER, Correctional Captain; MIKE
NICHOLS, Correctional Major; TRACEY PORTER, Classification
Officer; LINDA DEHOYOS, Doctor; TIMOTHY WEST, Senior Warden,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
December 24, 1998
Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges.
DeMOSS, Circuit Judge:
Texas state prisoner Chandler Wendell, Jr. appeals the
district court’s dismissal of this civil rights action for failure
to exhaust administrative remedies prior to bringing suit. We
affirm.
I. RELEVANT FACTS
Proceeding pro se and in forma pauperis, Wendell filed a civil
rights complaint pursuant to 42 U.S.C.A. § 1983 against
Correctional Officer Lloyd Asher, Sergeant William Pittman,
Lieutenant Billye Forrest, Captain Ricky Tarver, Major Mike
Nichols, Classification Officer Tracey Porter, Prison Psychiatrist
Dr. Linda Dehoyos, and Warden Timothy West, all prison officials at
the Stiles Correctional Facility in Beaumont, Texas.
Wendell suffers from AIDS and is housed in a medical
administrative segregation unit. On June 17, 1997, Officer Asher
arrived to escort Wendell to an appointment with prison
psychiatrist Dr. Linda Dehoyos. En route, Wendell requested that
he be taken by the medical unit where he could obtain cough syrup
for congestion. Officer Asher refused. When Wendell arrived at
Dr. Dehoyos’ office, he explained his physical symptoms to the
doctor and again requested cough syrup. Dr. Dehoyos escorted
Wendell to the medical unit for further examination.
While a prison nurse was taking Wendell’s vital signs, Officer
Asher came into the medical unit and, according to Wendell, became
angry that Wendell had requested cough syrup again. Wendell claims
that Officer Asher told the nurse to disconnect Wendell from the
monitoring equipment and then told Wendell that he had “messed up.”
Officer Asher instructed Wendell to get up and return to his cell.
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Apparently Wendell hesitated, which angered Officer Asher more.
Eventually, Officer Asher physically pulled Wendell to a standing
position and began walking him to the door. Wendell claims that
Officer Asher took two steps toward the door and then suddenly
jerked up on the handcuffs which were fastened behind Wendell’s
back, forcing Wendell down over Asher’s leg and to the floor.
While Wendell was down, Officer Asher jumped on his back, grabbed
his head and began banging it on the concrete floor. Wendell, who
states that he is in the last stages of a terminal case of AIDS,
claims he did not resist.
The entire incident was observed by Dr. Dehoyos and the prison
nurse. Wendell claims that he sustained serious injury.
Specifically, Wendell claims that his face was split open above the
left eyebrow. Wendell also claims that Officer Asher jerked the
handcuffs so hard that the right cuff was ripped off his hand,
creating a two inch laceration. Finally, Wendell claims that his
ribs were bruised.
After the incident, Officer Asher reported Wendell for a
disciplinary infraction, claiming that Wendell had refused to
respond to a repeated order to stand up. Defendant Captain Tarver
investigated the disciplinary report. On June 27, 1997, there was
a hearing on the merits of Officer Asher’s disciplinary report
against Wendell. At the hearing, Wendell claims that he and his
representative were instructed to wait outside while Captain Tarver
“coached” Archer on his testimony. Officer Archer then testified
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that Wendell had refused to stand up when Asher gave him a direct
order in the medical unit. Wendell claims that the prison nurse
gave conflicting testimony that Wendell did get up when asked.
Captain Tarver found that Wendell had committed a disciplinary
infraction, and imposed significant additional restraints on
Wendell’s confinement as a result. Wendell claims that the
disciplinary report and subsequent hearing were merely a
contrivance to conceal or distract attention from Officer Asher’s
misconduct towards Wendell, in violation of his federally protected
right to due process.
Wendell also claims that the June 17, 1997 incident was not
the first time that he had either been subjected to excessive
physical force or threatened with the use of excessive force by
correctional officers at the medical segregation unit. Wendell’s
Original Complaint describes at least two prior incidents of
excessive force, which occurred in December 1995 and November 1996,
and are apparently the subject of another pending civil rights
case. Wendell claims that he requested a transfer to another
facility in April 1997 because he feared for his safety in the
wake of these prior incidents. Wendell alleges that defendant
Porter, a classification officer at the unit, played a role in
denying the April 1997 transfer request.
Wendell also describes at least two incidents in which he was
threatened with physical force by correctional officers at the
medical segregation unit. Both of those incidents occurred in May
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1997. Wendell claims that the May 1997 threats of violence were
either witnessed by or related to Sergeant Pittman, Lieutenant
Forrest and Major Nichols, but that those officials took no action
to protect him from further harm. Wendell also claims that he
informed the prison psychiatrist, Dr. Dehoyos about the problem,
but that the doctor expressed a reluctance to get involved in
“security issues.” Finally, Wendell claims that the warden,
defendant West, had actual knowledge that medical segregation
inmates were being physically abused by the guards and that West
acquiesced in that unconstitutional treatment.
II. PROCEDURAL HISTORY
Wendell filed suit on July 28, 1997. Wendell’s Original
Complaint alleges Eighth Amendment claims for use of excessive
force and deliberate indifference to his right to be free from the
use of excessive force against Officer Asher, Sergeant Pittman,
Lieutenant Forrest, Major Nichols, Dr. Dehoyos, Warden West, and
the Classification Officer, Porter. Wendell’s Original Complaint
also alleges Fourteenth Amendment claims for deprivation of due
process in the handling of the disciplinary hearing and subsequent
disciplinary action against Captain Tarver and Officer Asher.
Wendell’s Original Complaint unambiguously seeks both monetary and
injunctive relief. Specifically, Wendell asks that he be
transferred from the facility where he is being held, that the
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federal courts enjoin all harassment and retaliation by prison
officials until he is transferred, that his disciplinary record be
expunged to eliminate any consequences from the tainted
disciplinary proceedings, that he be returned to the more favorable
classification status that he enjoyed prior to the disciplinary
hearing, and finally, that the federal court award him actual and
exemplary monetary damages against all defendants.
The district court referred the matter to a Magistrate Judge.
The Magistrate Judge entered a Memorandum and Recommendation noting
that Wendell’s Complaint had been filed on July 28, 1997, only a
short time period after the June 17, 1997 incident, and that
Wendell had not alleged exhaustion of administrative remedies.
Wendell filed objections, asserting that administrative remedies
were exhausted as of July 30, 1997, two days after his Complaint
was filed. The district court conducted a de novo review and then
dismissed for failure to exhaust administrative remedies prior to
filing suit.
III. THE STATUTORY EXHAUSTION REQUIREMENT
Title 42 U.S.C.A. § 1997e requires that a state prisoner
exhaust available administrative remedies prior to filing suit in
federal district court under 42 U.S.C.A. § 1983. The applicable
version of § 1997e provides:
No action shall be brought with respect to prison
conditions under section 1983 of this title, or any
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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.A. § 1997e (Supp. 1998). That provision plainly requires
that administrative remedies be exhausted before the filing of a
§ 1983 suit, rather than while the action is pending.
Section 1997e was substantially amended by passage of the
Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, § 803,
110 Stat. 1321, which took effect April 26, 1996. Prior to passage
of the PLRA, § 1997e provided only that a federal district court
had the discretion to require exhaustion when such a requirement
would be “appropriate and in the interests of justice.” The pre-
PLRA version of § 1997e limited that discretion by including
requirements that the available remedies be “plain, speedy, and
effective,” and that they meet certain minimum standards defined in
the statute. See 42 U.S.C.A. § 1997e (1994). Even if the court
made a decision to require exhaustion, the statutory procedure
under the pre-PLRA version of § 1997e was to stay the case for up
to 180 days to permit exhaustion. Thus, prior to April 1996, the
statutory exhaustion requirement applicable to § 1983 suits by
state prisoners was entirely discretionary, subject to significant
limitations, and required merely a stay, rather than dismissal.
Cf. Underwood v. Wilson, No. 97-40536, 1998 WL 476217 (5th Cir.
Aug. 14, 1998); Whitley v. Hunt, No. 97-40938, 1998 WL 740134 (5th
Cir. Oct. 23, 1998).
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We recently held that the exhaustion requirement imposed by
amended § 1997e is not jurisdictional. Underwood, 1998 WL 476217
at *2-3. Rather, the amended statute imposes a requirement, rather
like a statute of limitations, that may be subject to certain
defenses such as waiver, estoppel, or equitable tolling. See id.
at *3 (citing Zipes v. Trans World Airlines, 102 S. Ct. 1127
(1982)). “[N]on-jurisdictional exhaustion requirement[s] may, in
certain rare instances, be excused.” Id. at *5 (citing McCarthy v.
Madigan, 112 S. Ct. 1081 (1992)). McCarthy stated that the
decision to require exhaustion pursuant to § 1997e would depend in
part upon the relative strength of the individual prisoner’s
interest in obtaining prompt judicial redress and the
countervailing institutional interests that favor exhaustion. See
McCarthy, 112 S. Ct. at 1087. McCarthy, however, was interpreting
the limited and discretionary exhaustion requirement embodied in
the pre-PLRA version of § 1997e. That largely discretionary
balancing test cannot survive Congress’ 1996 amendment of § 1997e.
By shearing § 1997e of the substantial limitations upon exhaustion
that were embodied in the prior version of the statute, Congress
unambiguously expressed its intent that exhaustion be generally
imposed as a threshold requirement in prisoner cases. Underwood,
1998 WL 476217 at *5 (identifying Congressional purpose to provide
relief from frivolous prisoner claims by requiring exhaustion); see
also Garrett v. Hawk, 127 F.3d 1263, 1265 (10th Cir. 1997). It
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would therefore be contrary to both Congress’ intent and the plain
language of the amended statute to continue applying in every case
the discretionary balancing test defined in McCarthy for use with
the pre-PLRA version of the statute. Absent a valid defense to the
exhaustion requirement, e.g., Whitley, 1998 WL 740134 (holding that
§ 1997e does not require exhaustion of remedies that are not
capable of providing redress, and therefore “available”), the
statutory requirement enacted by Congress that administrative
remedies be exhausted before the filing of suit should be imposed.
To hold otherwise would encourage premature filing by potential
litigants, thus undermining Congress’ purpose in passing the PLRA,
which was to provide the federal courts some relief from frivolous
prisoner litigation. See Underwood, 1998 WL 476217 at *5 (citing
legislative history in support of decision dismissing claims that
were exhausted after suit was filed but before claims were
dismissed).
Having identified the statutory exhaustion requirement and
having defined the relevant test for determining whether the
requirement may be excused, we turn to an examination of whether
Wendell exhausted available remedies before filing suit.
IV. WENDELL’S ADMINISTRATIVE GRIEVANCES
The Texas Department of Criminal Justice currently provides a
two-step procedure for presenting administrative grievances. Step
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1 requires the prisoner to submit an administrative grievance at
the institutional level. TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
Administrative Directive No. AD-03.82 (rev.1), Policy ¶ IV (Jan.
31, 1997). After an investigation, the unit grievance investigator
prepares a report and makes a recommendation to the final decision
maker for step 1 of the process, which may be the warden, assistant
warden, facility administrator, assistant facility administrator,
or health administrator. Id. Step 2 permits the prisoner to
submit an appeal to the division grievance investigation with the
Institutional Division of the Texas Department of Criminal Justice.
After an investigation, the departmental grievance investigator
prepares a report and makes a recommendation to the final decision
maker for step 2 of the process, which is the director, deputy
director, regional director or assistant director. Id.
The grievance procedure takes approximately 90 days to
exhaust. Prisoners are allowed 15 calendar days to file a step 1
grievance. TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Administrative Directive
No. AD-03.82 (rev.1), Policy ¶ VI (Jan. 31, 1997). The response to
the step 1 grievance is due within forty days after receipt of the
grievance. Id. The prisoner then has 10 days to submit an appeal.
Id. The response to the step 2 grievance is due within forty days
after receipt of the prisoner’s appeal. Id.
Wendell filed a step 1 grievance raising issues relating to
his Eighth Amendment claims on June 17, 1997, the same day that he
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claims he was beaten by Officer Asher. That grievance was timely
denied on June 24, 1997. On June 25, 1997, Wendell appealed that
determination, again raising his Eighth Amendment claims that
Officer Asher subjected him to excessive force and that certain
officials at his unit were deliberately indifferent to his right to
be free from excessive force at the hands of prison guards. Two
days later, on June 27, 1997, Captain Tarver conducted the
disciplinary hearing which serves as the basis for Wendell’s
Fourteenth Amendment due process claims. Wendell did not file any
administrative grievances, either at the institution or with the
Texas Department of Criminal Justice specifically relating to those
claims. On July 28, 1997, and before the Texas Department of
Criminal Justice responded to Wendell’s step 2 grievance, Wendell
filed this lawsuit. Two days later, on July 30, 1997, the Texas
Department of Criminal Justice issued an order stating that
Wendell’s grievance had been “referred to Internal Affairs.” The
record does not reflect whether any further action was taken with
respect to Wendell’s step 2 grievance, but the grievance would have
been deemed denied as of the fortieth day after it was received by
the Texas Department of Criminal Justice, or no later than August
4, 1997. See Underwood, 1998 WL 476217 at *4.
From the foregoing facts, it is clear that Wendell filed this
suit before exhausting available administrative remedies. With
respect to his Eighth Amendment excessive force claims, those
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claims were not exhausted until several days after Wendell filed
suit. With respect to his Fourteenth Amendment due process claims,
the record reflects that Wendell has never pursued administrative
remedies at all.
Wendell has not raised any valid excuse for failing to exhaust
available administrative remedies. Although he makes a conclusory
allegation that the administrative procedures are inadequate, he
does not provide any facts to support that allegation, and it does
not appear from the record that any barrier was imposed to
Wendell’s expedient exhaustion of available remedies with respect
to his Eighth Amendment claims. Moreover, we note that the
dismissal of Wendell’s claims in this case will not cause any
injustice or render judicial relief unavailable. Wendell’s claims
were dismissed without prejudice to refiling. Wendell has now
exhausted administrative remedies as to his Eighth Amendment
claims. Those claims are governed by Texas’ two-year statute of
limitations, which will not expire until at least April 1999, two
years after the earliest date that Wendell claims he informed the
named prison officials he was being threatened with excessive
force. Gonzales v. Wyatt, No. 97-41074, 1998 WL 698866 (5th Cir.
Oct. 23, 1998).1 Wendell may pursue those claims in federal court
1
Texas law, unlike many other states, does not provide
that imprisonment is a legal disability capable of tolling the
applicable statute of limitations. See Gonzales v. Wyatt, No. 97-
41074, 1998 WL 698866 at *3 (5th Cir. Oct. 23, 1998); TEX CIV. PRAC.
& REM. CODE § 16.001 (amending definition of legal disability in
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immediately. Wendell has not pursued administrative remedies with
respect to his Fourteenth Amendment claims. Those remedies may be
exhausted, however, within 90 days after the issuance of this
opinion. Wendell’s due process claims are also governed by Texas’
two-year statute of limitations period, which will not expire until
at least June 1999, two years after the challenged disciplinary
hearing. Pete v. Metcalfe, 8 F.3d 214 (5th Cir. 1993). Provided
Wendell acts promptly, we conclude that there are no apparent
barriers to the refiling of this action in federal district court
once he exhausts his administrative remedies as required by
§ 1997e. Given the statutory mandate of § 1997e, we must affirm
the district court’s dismissal of Wendell’s claims for failure to
exhaust administrative remedies prior to filing suit as required by
42 U.S.C.A. § 1997e.2
Texas to exclude imprisonment).
2
Wendell now claims that he is seeking only monetary
damages. But Wendell’s conclusory and fleeting argument on this
point is blatantly inconsistent with his active pleadings in the
district court. Wendell made no request or attempt to amend those
pleadings in the district court, and we will not entertain such an
attempt on appeal. Wendell will be the master of his pleadings
when the suit is refiled, and may so limit his request for relief
if he desires at that time. See Marsh v. Jones, 53 F.3d 707 (5th
Cir. 1995) (state prisoner need not pursue administrative remedies
prior to filing suit for monetary damages if the applicable state
remedies are incapable of affording the prisoner monetary relief);
Texas Department of Criminal Justice, Administraive Directive No.
AD-03.82 (rev.1), Remedies ¶ II (Jan. 31, 1997) (“Requests for
disciplinary action against employees or for consequential or
punitive damages will not be addressed through the grievance
procedures.”).
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V. WENDELL’S MOTION FOR APPOINTMENT OF COUNSEL ON APPEAL
Wendell moved for appointment of counsel on appeal in the
district court. That motion was effectively denied by the district
court’s failure to rule, a decision we review for abuse of
discretion. Jackson v. Dallas Police Dep’t, 811 F.2d 260, 261 (5th
Cir. 1986).
Absent exceptional circumstances, there is no automatic right
to appointment of counsel in a civil rights case. Akasike v.
Fitzpatrick, 26 F.3d 510, 512 (5th Cir. 1994). The purely legal
issue presented for the Court’s consideration on appeal is neither
peculiar nor complex. The record is sufficient, without further
development or argument of counsel, to support our decision in this
matter. For that reason, we find no error in the district court’s
refusal to appoint counsel for Wendell’s appeal.
VI. CONCLUSION
For the foregoing reasons, the district court’s dismissal of
Wendell’s § 1983 action without prejudice for failure to exhaust
administrative remedies as required by 42 U.S.C.A. § 1997e is
AFFIRMED.
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