Ware v. Maloney

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1487
JAMES WARE,
Plaintiff, Appellant,
v.
MICHAEL T. MALONEY, IN HIS OFFICIAL CAPACITY AS
COMMISSIONER, SOUZA BARANOWSKI CORRECTIONAL CENTER, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Morris E. Lasker, Senior U.S. District Judge*]
Before
Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Selya, Circuit Judge.
James Ware on brief pro se.
Nancy Ankers White, Special Assistant Attorney General, and
Margaret Melville, Department of Correction, on brief for
appellees.
January 14, 2005
*Of the Southern District of New York, sitting by designation.
Per Curiam. Pro se inmate James Ware appeals a district
court order granting summary judgment in favor of defendant prison
officials based on Ware's failure to exhaust administrative
remedies as required by the Prisoner Litigation Reform Act of 1995,
42 U.S.C. § 1997e(a). We affirm, adding only the following
comments.1
First, Ware has not shown that the district court erred
in failing to find that defendants waived the exhaustion
requirement. Defendants raised a failure-to-exhaust defense in
their answer and in a renewed motion for summary judgment. Ware
did not assert any prejudice, nor do we perceive any, as he was on
notice of the exhaustion requirement and had ample time to oppose
the renewed summary judgment motion. Thus, the district court did
not abuse its discretion in considering the defendants' failure-to-
exhaust defense. See Guzman-Rivera v. Rivera-Cruz, 98 F.3d 664,
668 (1st Cir. 1996) (holding that decision on waiver of affirmative
defense normally is within district court's discretion).
Also, Ware has not shown that the district court erred in
finding that Ware had not exhausted his administrative remedies
1
The district court's earlier grant of partial summary
judgment for defendants is not properly before us, as Ware does not
present any developed argumentation regarding that earlier
decision. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990) (noting that failure to present argument on issue waives
challenge to it).
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with respect to the three grievances at issue. We have considered
Ware's arguments and deem them without merit.2
Ware's motion for a procedural order is denied.
The judgment of the district court is summarily affirmed.
See Loc. R. 27(c).
2
In view of this conclusion, we need not address defendants'
separate contention that the district court's order may be affirmed
based on defendants' qualified immunity.
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