Shaw v. Bennett , 90 F. App'x 76 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 19, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-20386
Summary Calendar
OSCAR L. SHAW,
Plaintiff-Appellant,
versus
VINCENT BENNETT; MARY MOSELY; CLIFF H. PRESTWOOD;
MITCHELL L. ALLISON; ROBERT R. CHANCE; TIMOTHY MOFFETT;
SALLY PITTMAN; DERICK VAN BUREN; CRAIG B. PRICE; TIMOTHY L.
MASSEY; INTERNAL AFFAIRS DIVISION OF THE TEXAS DEPARTMENT OF
CRIMINAL JUSTICE INSTITUTIONAL DIVISION,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CV-4267
--------------------
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Oscar L. Shaw, Texas prisoner # 646048, appeals from the
summary judgment dismissal of his 42 U.S.C. § 1983 civil rights
suit for failure to exhaust his administrative remedies, as
required by 28 U.S.C. § 1997e. On appeal, Shaw contends that the
exhaustion requirement did not apply to all of his claims and
*
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that this opinion should not be published and is not precedent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. 03-20386
-2-
that the district court erred by considering, sua sponte, the
exhaustion issue when addressing and denying Shaw’s motion for
summary judgment. Shaw also argues that the defendants-appellees
waived the exhaustion “defense” by failing to assert it in their
answer, and that their summary judgment motion based on that
ground should have therefore been denied. Shaw further asserts
that the district court erred in dismissing his suit with
prejudice.
Because exhaustion is mandatory under amended 42 U.S.C.
§ 1997e, Shaw was required to exhaust his administrative remedies
for all his claims, including those raised under the Americans
with Disabilities Act, since they involved matters of prison
life. See Booth v. Churner, 532 U.S. 731, 739 (2001); see also
Clifford v. Gibbs, 298 F.3d 328, 332 (5th Cir. 2002). Under the
law of this circuit, the district court was permitted to consider
sua sponte the issue of exhaustion when addressing and denying
Shaw’s motion for summary judgment. Wendell v. Asher, 162 F.3d
887, 889 (5th Cir. 1998).
Shaw’s waiver-of-exhaustion-defense claim, which he failed
to preserve in the district court, does not survive plain error
review since this court has not specifically identified
exhaustion as an affirmative defense that may be waived. See
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1417
(5th Cir. 1996) (en banc). Because Shaw was proceeding in forma
pauperis (IFP) in the district court, the dismissal of the
No. 03-20386
-3-
complaint with prejudice for purposes of proceeding IFP was
within the discretion of the district court and will not be
disturbed. See Underwood v. Wilson, 151 F.3d 292, 293 (5th Cir.
1998).
Shaw also argues that the district court abused its
discretion in denying his motions for leave to supplement his
complaint, default judgment, discovery, and equitable/injunctive
relief. Upon review of the record, we find no abuse of
discretion with respect to the district court’s denial of these
motions. See Griffin v. County Sch. Bd. of Prince Edward County,
377 U.S. 218, 226 (1964); Burns v. Exxon Corp., 158 F.3d 336, 343
(5th Cir. 1998); East v. Scott, 55 F.3d 996, 1002 (5th Cir.
1995); Thomas v. Kippermann, 846 F.2d 1009, 1011 (5th Cir. 1988);
Peaches Entm’t Corp. v. Entm’t Repertoire Assocs., Inc., 62 F.3d
690, 693 (5th Cir. 1995).
AFFIRMED.