Ketzel v. Barnett ( 2001 )


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  •                 IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 01-10108
    Conference Calendar
    GARY NORMAN KETZEL,
    Plaintiff-Appellant,
    versus
    WILLIAM BARNETT; ALFRED WILLSON; GARY PARKS; LESLIE WEST;
    JOHN DOE, DR.; E. CHASE; R. BLAIR; MOZETTA JOHNSON; LARRY BOND;
    FERNANDO DE LA ROSE; GLEN MEHARG; LESLIE HICKS; F. BAXTER;
    TEXAS TECH MEDICAL HEALTH SERVICES; TEXAS CORRECTIONAL
    INDUSTRIES; JOHN BENESTANTE; GARY L. JOHNSON, DIRECTOR, TEXAS
    DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION;
    WAYNE SCOTT, Director,
    Defendants-Appellees.
    --------------------
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 2:00-CV-258
    --------------------
    June 13, 2001
    Before WIENER, DeMOSS, and DENNIS, Circuit Judges.
    PER CURIAM:*
    Gary Norman Ketzel (TDCJ # 743036) appeals the district
    court’s dismissal of his pro se and in forma pauperis (IFP) 
    42 U.S.C. § 1983
     complaint wherein he sought injunctive relief and
    monetary damages for a variety of alleged civil rights
    violations.    Ketzel averred in his complaint that he had not
    sought administrative remedies with respect to the bulk of his
    *
    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    that this opinion should not be published and is not precedent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. 01-10108
    -2-
    claims, but that he would “promptly submit both Step One and Step
    Two grievances provided this honorable court serves me notice of
    fulfilling this administrative remedy requirement.”
    The district court dismissed the complaint as frivolous for
    failure to exhaust administrative remedies.   The district court
    also denied a post-judgment motion by Ketzel wherein he asserted
    that he had made a “grievious [sic] clerical error” when he
    informed the court that he had not exhausted his administrative
    remedies.
    Ketzel has attached to his brief “exhibits” which he
    asserts establish exhaustion of administrative remedies.    We will
    not enlarge the record on appeal with evidence not before the
    district court.   See Trinity Industries, Inc. v. Martin, 
    963 F.2d 795
    , 799 (5th Cir. 1992).
    Title 42 U.S.C. § 1997e(a) provides that: “No action shall
    be brought with respect to prison conditions under section 1983
    of this title, or any other Federal law, by a prisoner confined
    in any jail, prison, or other correctional facility until such
    administrative remedies as are available are exhausted.”
    A state prisoner’s mixed petition for both monetary and
    injunctive relief is subject to § 1997e’s exhaustion requirement.
    Whitley v. Hunt, 
    158 F.3d 882
    , 887 (5th Cir. 1998).   We review a
    district court’s dismissal of a prisoner’s complaint for failure
    to exhaust de novo.   See Powe v. Ennis, 
    177 F.3d 393
    , 394 (5th
    Cir. 1999).
    Given the record before the district court which included
    Ketzel’s verified allegation that he had not exhausted his
    No. 01-10108
    -3-
    administrative remedies, Ketzel cannot show that the district
    court erred by dismissing the complaint as frivolous for failure
    to exhaust, or by denying the post-judgment motion.   See Ali v.
    Higgs, 
    892 F.2d 438
    , 440 (5th Cir. 1990)(district court may sua
    sponte address obvious affirmative defenses to an IFP complaint);
    cf. Underwood v. Wilson, 
    151 F.3d 292
     (5th Cir. 1998)(dismissal
    with prejudice based on failure to exhaust was appropriate in IFP
    proceeding).   The judgment of the district court is AFFIRMED.