Love v. Whitley ( 1995 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-30144
Summary Calendar
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ROBERT E. LOVE,
Plaintiff-Appellant,
versus
JOHN P. WHITLEY, Warden,
ET AL.,
Defendants-Appellees.
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Appeal from the United States District Court for the
Middle District of Louisiana
(93 CV 793)
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(August 17, 1995)
Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:*
Robert E. Love (Love), an inmate in the Louisiana State
Penitentiary in Angola, Louisiana, filed this section 1983 suit
against various prison officials on September 14, 1993, alleging
that the prison's administrative remedy procedures violated his
* Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
constitutional rights, that he was issued a false disciplinary
report and harassed for unknown reasons, and that he was denied
procedural due process because a disciplinary board hearing was
improperly conducted. In his pro se complaint, Love sought both
injunctive and monetary relief.2 The district court referred the
case to a magistrate judge, who held a Spears3 hearing on October
21, 1993. After the hearing, the magistrate judge denied Love
leave to proceed in forma pauperis and ordered him to pay a partial
filing fee of $15. On November 1, 1993, the magistrate judge
issued a stay order to determine (1) whether Love had exhausted
prison administrative procedures, and (2) if he had not, to give
him a ninety-day period in which to do so, and (3) to inform him
that failure to make a reasonable and good faith effort to exhaust
these administrative procedures would result in the dismissal of
his suit with prejudice. On March 15, 1994, the Louisiana
Department of Public Safety and Corrections (LDPSC) filed a Notice
of Failure to Exhaust Administrative Remedies and the affidavit of
Carlos Messina, the General Administrator of the LDPSC,
Administrative Remedy Procedure. In his affidavit, Messina averred
that Love had failed to exhaust his administrative remedies.4
In his prayer for relief, Love sought compensatory and
punitive damages, attorneys' fees, transportation of his body to
his family in the event he dies in prison, traveling expenses for
his family to come visit him in prison, and an injunction requiring
Defendants to stop violating his constitutional rights.
Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985).
Specifically, Messina stated that, although Love had initiated
a request for administrative review regarding the constitutionality
of the disciplinary rules and procedures, he did not appeal to the
2
On March 21, 1994, the magistrate judge ordered Love to show
cause why his suit should not be dismissed pursuant to 42 U.S.C. §
1997e(a)(1) for failure to exhaust administrative remedies. Love
responded that he need not exhaust administrative remedies because
the procedures have not been certified by the Attorney General or
a federal court as required under the Civil Rights of
Institutionalized Persons Act (the Act) and because the procedures
are not in substantial compliance with the requirements of the Act.
In her April 14, 1994, report and recommendation, the
magistrate judge determined that Love had "not made a good faith
attempt to exhaust the administrative remedy procedure" and
therefore recommended that Love's suit be dismissed under section
1997e(a)(1). Love filed objections to the magistrate judge's
report. On January 9, 1995, the district court overruled Love's
objections and dismissed his suit for failure to exhaust
administrative remedies under section 1997e(a)(1). Love appealed,
and this Court granted him leave to proceed in forma pauperis.
On appeal, Love does not contend that he exhausted his
administrative remedies; rather, he argues that he should not be
required to exhaust his administrative remedies because the prison
procedures do not meet federal minimum standards required by the
Act.5 Contrary to Love's contention, the Administrative Remedy
Third Step of the procedure. In addition, Messina stated that Love
had not appealed the disciplinary board's ruling regarding a
disciplinary violation that he received for aggravated
disobedience.
We note that Love also argues that he need not exhaust
administrative remedies because "prison officials ignore [sic] and
3
Procedures promulgated by the LDPSC have been certified as meeting
section 1997e's minimal requirements. See Martin v. Catalanotto,
895 F.2d 1040, 1042 (5th Cir. 1990) (recognizing that the United
States District Court for the Middle District of Louisiana approved
the procedures as meeting 1997e's minimal requirements).
Accordingly, we reject Love's argument that the administrative
remedies do not comply with the Act's requirements. Because Love
is seeking both monetary and injunctive relief, he is required to
make a good faith attempt to exhaust his administrative remedies
before filing suit in federal court. Arvie v. Stalder, 53 F.3d
702, 705 (5th Cir. 1995) (holding that a district court has the
power under section 1997e(a)(1) to dismiss an inmate's section 1983
suit seeking both monetary and injunctive relief when the plaintiff
has failed to make a good faith attempt to exhaust his
administrative remedies). Based on our review of the record in
this case, we agree with the district court's conclusion that Love
failed to make a good faith attempt to exhaust his administrative
remedies. Accordingly, we affirm the judgment of the district
court.
AFFIRMED.
interfered with his attempts to pursue an Administrative Remedy."
This argument contradicts the magistrate judge's finding that he
failed to make a good faith attempt to exhaust his administrative
remedies. Because we uphold the magistrate judge's finding, we
reject this argument.
4