Donnelly v. Edwards ( 2004 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                  April 23, 2004
    Charles R. Fulbruge III
    No. 03-60482                          Clerk
    Summary Calendar
    LONNIE DONNELLY,
    Plaintiff-Appellant,
    versus
    LINDA EDWARDS; SCOTT FITCH, Warden; DIANE FOY, Commander;
    DANA RICKS, Hearing Officer; NICHOLE BERANICH, Unit Manager;
    W. CLEMENS, Chief of Security,
    Defendants-Appellees.
    --------------------
    Appeal from the United States District Court
    for the Southern District of Mississippi
    USDC No. 3:02-CV-1538-WS
    --------------------
    Before DUHÉ, BENAVIDES, and STEWART, Circuit Judges.
    PER CURIAM:1
    Lonnie Donnelly, Mississippi prisoner # K1304, appeals the
    magistrate judge’s dismissal of his 
    42 U.S.C. § 1983
     complaint.
    The magistrate judge dismissed Donnelly’s claims regarding a denial
    of access to the courts for failure to state a constitutional
    claim.   Donnelly has not established that he was unable to proceed
    in a court case as a result of the delays and the denial of
    assistance in the law library.   See Lewis v. Casey, 
    518 U.S. 343
    ,
    349-53 (1996); Brewer v. Wilkinson, 
    3 F.3d 816
    , 821 (5th Cir.
    1
    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    that this opinion should not be published and is not precedent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.
    1993).   Donnelly has not established that the magistrate judge
    erred in denying relief on this ground.    See Calhoun v. Hargrove,
    
    312 F.3d 730
    , 733 (5th Cir. 2002).
    The magistrate judge dismissed the remainder of Donnelly’s
    claims because he had not established that he had exhausted his
    administrative remedies.   The exhaustion requirement of 42 U.S.C.
    § 1997e(a) is mandatory.   Days v. Johnson, 
    322 F.3d 863
    , 866 (5th
    Cir. 2003). However, a mere allegation of exhaustion without proof
    is sufficient to overcome dismissal.      Underwood v. Johnson, 
    151 F.3d 292
    , 296 (5th Cir. 1998).       Donnelly’s allegations against
    Scott Fitch, Diane Foy, Nichole Beranich, and W. Clemens do not
    sufficiently specify the exhaustion of administrative remedies, and
    the dismissal by the magistrate judge is AFFIRMED.
    Donnelly alleges, however, that he filed an administrative
    appeal following his disciplinary conviction by Dana Ricks and that
    relief was denied on appeal.      This assertion is sufficient to
    establish the exhaustion of administrative remedies.        See 
    id.
    However, Donnelly cannot establish that he is entitled to relief on
    this claim.      See Sandin v. Conner, 
    515 U.S. 472
    , 475, 486-87
    (1995); Superintendent, Massachusetts Corr. Inst. v. Hill, 
    472 U.S. 445
    , 455-56 (1985). Therefore, this court AFFIRMS the dismissal on
    this alternate ground.   See Sojourner T v. Edwards, 
    974 F.2d 27
    , 30
    (5th Cir. 1992).
    AFFIRMED.
    2