Whitley v. Hunt

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 97-40938

RUSSELL WILLIAM WHITLEY,

Plaintiff-Appellant,

VERSUS

JOHN HUNT, Unit Manager at FCI Texarkana Texas in
his individual capacity; LEJEAN MOORE, Case Manager
at FCI Texarkana Texas; KENNETH WILLIAMS, Counselor at
FCI Texarkana Texas in his individual capacity;
BUREAU OF PRISONS, Bureau of Prisons in Washington D.C.,

Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Texas
October 23, 1998

Before WIENER, BARKSDALE, and DeMOSS, Circuit Judges.

DeMOSS Circuit Judge:

Federal prisoner Russell William Whitley appeals the district

court’s dismissal of his claims challenging the conditions of his

confinement in the federal correctional facility at Texarkana,

Texas. Whitley is appearing pro se and in forma pauperis. We

affirm in part, reverse in part, and remand for further proceedings

consistent with this opinion.
 BACKGROUND

Russell William Whitley is serving a sentence of thirty months

at the federal correctional facility in Texarkana, Texas for drug

offenses involving 170 kilograms of cocaine and 1,660 grams of

heroin. In May 1997, Whitley filed an action against the Bureau of

Prisons and three prison officials, (1) John Hunt, a unit manager,

(2) Lejean Moore, a case manager, and (3) Kenneth Williams, a

counselor. Whitley’s original complaint alleges (1) that the

defendants endangered his current and future health by forcing

Whitley, a non-smoker, to sleep in a smoking dorm for thirteen

weeks, in violation of the Eighth Amendment, (2) that the

defendants discriminated against him because of his race and

because he is from St. Louis, and (3) that the defendants willfully

changed his security status from minimum security to low security

on the basis of inaccurate information in his presentence report,

in violation of the Privacy Act, 5 U.S.C.A. § 552a. Whitley also

claims that the defendants have retaliated against him for filing

administrative grievances. Whitley’s original complaint requests

that the Bureau of Prisons pay $1,000,000 in monetary damages and

that he be provided future medical care. Whitley’s complaint also

requests $100,000 from each of the named defendants and that the

named defendants be terminated from their positions with the Bureau

2
of Prisons.

The district court referred Whitley’s case to a magistrate

judge. The magistrate judge prepared a memorandum recommending

that Whitley’s claims be dismissed for failure to exhaust

administrative remedies. Whitley filed objections. In his

objections, Whitley sought to amend his complaint to seek monetary

damages only. Whitley clarified that he was no longer requesting

that the defendants be terminated and no longer requesting future

medical care. Rather, Whitley amended his complaint to request

“monetary damages for medical care” in the amount of $1,000,000

from the Bureau of Prisons and $100,000 from each of the individual

defendants. Whitley argued that he was not required to pursue

administrative remedies prior to bringing suit for monetary

damages. Whitley also argued that some of his grievances had been

rejected and that further filings would be futile.

The district court overruled Whitley’s objections and entered

an order dismissing Whitley’s claims. Whitley’s denial of medical

care and discrimination claims were dismissed for non-exhaustion

and without prejudice to refiling once administrative remedies were

exhausted. Whitley’s classification claim was dismissed with

prejudice as frivolous pursuant to 28 U.S.C.A. § 1915(e)(2)(B)(i).

After the district court entered final judgment, Whitley filed a

timely notice that he intended to appeal the district court’s

judgment.

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 WHITLEY’S DENIAL OF MEDICAL CARE CLAIMS

Whitley claims that the individual defendants and the Bureau

or Prisons demonstrated a deliberate indifference to his serious

medical needs, in violation of the Eighth Amendment. Specifically,

Whitley claims that he became seriously ill after he was

unwillingly incarcerated in a smoking environment for thirteen

weeks. The district court dismissed Whitley’s claim against the

individual defendants and Whitley’s claim against the Bureau of

Prisons for non-exhaustion.

I.

The district court’s dismissal of Whitley’s denial of medical

care claims for non-exhaustion was based in part upon its view that

Whitley was seeking both injunctive and monetary relief. On

appeal, Whitley claims that he was not required to pursue

administrative remedies prior to filing suit because he was seeking

solely monetary relief. We begin, therefore, with an analysis of

Whitley’s pleadings.

Whitley‘s original complaint clearly requests both monetary

and injunctive relief. In his written objections to the magistrate

judge’s recommendation, however, Whitley sought to amend his

complaint by narrowing his claims to seek only monetary relief.

The district court’s order gave no effect to Whitley’s request.

4
 Whitley was entitled to amend his pleading once as a matter of

course, and without leave of court, at any time prior to the time

that the defendants answered the lawsuit. See FED. R. CIV. P. 15(a)

(providing that a “party may amend the party’s pleading once as a

matter of course at any time before a responsive pleading is

served”). Although Whitley failed to present the district court

with a properly styled amended complaint, his pro se attempt to

narrow his pleadings was timely and should have been given effect

as a matter of course. See, e.g., Horton v. Cockrell, 70 F.3d 397,

402 (5th Cir. 1995). We therefore construe Whitley’s pro se

complaint as a request for exclusively monetary relief.

II.

Whitley characterizes his denial of medical care claims as

constitutional claims for violation of the Eighth Amendment. The

district court’s order dismissing Whitley’s denial of medical care

claims fails to distinguish between Whitley’s claim against the

individual defendants and Whitley’s claim against the Bureau of

Prisons. To the extent Whitley is alleging denial of medical care

against the individual prison officials, his claim is in the nature

of a Bivens claim.1 “[A] Bivens claim is available only against

1
In Bivens v. Six Unknown Named Federal Narcotics Agents,
91 S. Ct. 1999 (1971), the Supreme Court recognized that certain
circumstances may give rise to a private cause of action against
federal officials that is comparable to the statutory cause of
action permitted against state officials by 42 U.S.C.A. § 1983.

5
government officers in their individual capacities.”

Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1294 n.12 (5th Cir. 1994).

Bivens claims may not, however, be brought against agencies of the

federal government. F.D.I.C. v. Meyer, 114 S. Ct. 996, 1006

(1994). Whitley does not directly identify the basis of his

denial of medical care claim against the Bureau of Prisons.

Construing Whitley’s pleadings liberally, we determine that

Whitley’s denial of medical care claim against the Bureau of

Prisons would be actionable, if at all, only as a claim under the

Federal Tort Claims Act, 28 U.S.C.A. §§ 2671-2680. See Shah v.

Quinlin, 901 F.2d 1241, 1244 (5th Cir. 1990); see also Garrett v.

Hawk, 127 F.3d 1263, 1266 (10th Cir. 1997).

III.

Whitley argues that he was not required to pursue

administrative remedies prior to filing his Bivens claim against

the individual prison officials because he is seeking exclusively

monetary relief, citing McCarthy v. Madigan, 112 S. Ct. 1081

(1992).

Title 42 U.S.C.A. § 1997e, which now governs a federal

prisoner’s obligation to pursue administrative remedies prior to

bringing a Bivens action against federal officials, was

See Zuspann v. Brown, 60 F.3d 1156, 1157 n.2 (5th Cir. 1995).

6
substantially amended by passage of the Prison Litigation Reform

Act (PLRA), Pub. L. No. 104-134, § 803, 110 Stat. 1321, which

became effective April 26, 1996. Those amendments are applicable

to Whitley’s claims, which were filed in May 1997. Prior to the

PLRA, § 1997e provided:

(1) Subject to the provisions of paragraph (2), in
any action brought pursuant to section 1983 of this
title by an adult convicted of a crime confined in
any jail, prison, or other correctional facility,
the court shall, if the court believes that such a
requirement would be appropriate and in the
interests of justice, continue such case for a
period of not to exceed 180 days in order to
require exhaustion of such plain, speedy, and
effective administrative remedies as are available.

(2) The exhaustion of administrative remedies may
not be required unless the Attorney General has
verified or the court has determined that such
administrative remedies are in substantial
compliance with the minimum acceptable standards
promulgated under subsection (b) of this section or
are otherwise fair and effective.

42 U.S.C.A. § 1997e (1994). Thus, § 1997e imposed a limited and

discretionary exhaustion requirement applicable to § 1983 claims

brought by state prisoners only. Although the pre-PLRA version of

§ 1997e did not require exhaustion by federal prisoners, many

courts (including this one) had nonetheless created a comparable

exhaustion requirement for actions brought by federal prisoners

challenging the conditions of their confinement. See, e.g., Arvie

v. Stalder, 53 F.3d 702, 704-05 (5th Cir. 1995).

The Supreme Court construed the pre-PLRA version of § 1997e in

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McCarthy v. Madigan, 112 S. Ct. 1081 (1992). McCarthy held that a

federal prisoner seeking solely monetary relief need not pursue

administrative remedies prior to filing a Bivens suit against

prison authorities. McCarthy was premised in large part upon the

dual facts (1) that Congress had not required exhaustion by federal

prisoners in § 1997e, and (2) that the Bureau of Prisons did not

afford any administrative remedies that would permit the recovery

of monetary damages. 112 S. Ct. at 1089-92.

Section 1997e, as amended by the PLRA, now provides:

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.

42 U.S.C.A. § 1997e (Supp. 1998). Having expanded the exhaustion

requirement to include actions brought under “any other Federal

law,” Congress now plainly requires federal prisoners to exhaust

available administrative remedies prior to bringing Bivens claims.

See, e.g., Garrett, 127 F.3d at 1265-66 & n.2; Alexander S. v.

Boyd, 113 F.3d 1373, 1380 (4th Cir. 1997), cert. denied, 118 S. Ct.

880 (1998). Therefore, that part of McCarthy which relied upon

Congress’ failure to expressly require exhaustion by federal

prisoners no longer provides a viable justification for excusing a

federal prisoner’s failure to pursue administrative remedies. The

question remains, however, whether Congress intended to require a

8
federal prisoner who is seeking exclusively monetary damages to

pursue administrative remedies when, and if, there are no

administrative remedies that would permit recovery of monetary

damages.

This Circuit has not addressed that question. In Garrett v.

Hawk, 127 F.3d 1263 (10th Cir. 1997), the Tenth Circuit held that

§ 1997e does not require a federal prisoner seeking exclusively

monetary relief to pursue administrative remedies prior to filing

a Bivens claim against prison officials. The Court reasoned that

McCarthy’s holding that Congress did not intend to require

exhaustion of unavailable remedies survived in the plain language

of the amended statute. 127 F.3d at 1266; see also 42 U.S.C.A. §

1997e (Supp. 1998) (“No action shall be brought . . . until such

administrative remedies as are available are exhausted.”)

(emphasis added). Noting that Congress had not seen fit to enact

administrative remedies that would, or even could, provide monetary

relief to prisoners pressing Bivens claims, the Court held that

§ 1997e could not be construed to require the exhaustion of non-

existent remedies. Garrett, 127 F.3d at 1267; see also McCarthy,

112 S. Ct. at 1092 (“Congress, of course, is free to design or

require an appropriate administrative procedure for a prisoner to

exhaust his claim for money damages."). Although the Tenth Circuit

is the only Circuit to have directly addressed the issue, the Ninth

Circuit likewise adheres to the rule that § 1997e does not require

9
that a federal prisoner seeking only monetary relief pursue

administrative remedies prior to filing a Bivens claim. See,

e.g., Lunsford v. Jumao-As, No. 96-56503, 1998 WL 683306 (9th Cir.

Oct. 5, 1998).2

The plain language of § 1997e requires only the exhaustion of

“available” administrative remedies. We infer from that term that

Congress did not intend to require the exhaustion of unavailable

remedies. Given that the statute does not specify when an

administrative remedy will be considered “available,” we must rely

upon traditional methods of statutory construction to give meaning

to the term.

We recently considered whether an administrative remedy

remained “available” within the meaning of § 1997e. In Underwood

v. Wilson, 151 F.3d 292 (5th Cir. 1998), the Court examined whether

an administrative remedy was still “available,” or instead should

be deemed “exhausted,” when the prisoner had filed the appropriate

grievance but prison officials had failed to respond within the

time period allowed by the regulations for a response. 151 F.3d at

295. The Court held that a remedy is “available” when it can be

2
Among those federal district courts that have addressed
the issue, there appears to be substantial disagreement. Some
district courts rely upon the plain language of the statute, which
only requires exhaustion of “available” remedies. Other district
courts have concluded that making the exhaustion requirement
contingent upon the type of relief being sought is inconsistent
with Congress’ purpose in enacting the PLRA. See Funches v. Reish,
No. 97-7611, 1998 WL 695904 at * 7 (S.D.N.Y. Oct. 5, 1998)
(collecting cases).

10
availed “for the accomplishment of a purpose” or “is accessible or

may be obtained.” Id. (quoting WEBSTER’S NEW INTERNATIONAL DICTIONARY 150

(3d ed. 1981)). At the time Whitley filed his complaint, there

were no administrative remedies capable of providing monetary

recovery against the individual defendants. Had he submitted a

grievance seeking exclusively monetary relief, it is likely that

the grievance would have been returned as improper subject matter

for administrative review. See Garrett, 127 F.3d at 1266; see also

28 C.F.R. § 542.12(b). We conclude that there were no “available”

or accessible administrative remedies that would have accomplished

the purpose of affording Whitley monetary relief.

Although decided under the pre-PLRA version of § 1997e, we are

also guided by this Court’s holding in Marsh v. Jones, 53 F.3d 707

(5th Cir. 1995), that § 1997e does not require a state prisoner

seeking exclusively monetary relief to pursue administrative

remedies prior to filing suit under § 1983. Id. at 710. As we

said in that case, “[t]he import of McCarthy is clear: A district

court should not require exhaustion under section 1997e if the

prisoner seeks only monetary damages and the prison grievance

system does not afford such a remedy.” Id. We find nothing in the

amended language of § 1997e that would undercut the general lessons

drawn from McCarthy in Marsh. We likewise leave undisturbed this

Court’s pre-PLRA holding in Arvie v. Stalder, 53 F.3d 702 (5th Cir.

1995), that a state prisoner’s mixed petition for both monetary and

11
injunctive relief is subject to § 1997e’s exhaustion requirement.

We join the Ninth and Tenth Circuits in adopting the rule that

federal prisoners pressing Bivens claims against federal officials

need not pursue prison remedies when they are seeking exclusively

monetary relief, and there are no prison remedies capable of

affording such relief. We note, as did the Tenth Circuit in

Garrett and the Supreme Court in McCarthy, that there is nothing to

prevent Congress, and perhaps even the Bureau of Prisons,3 from

enacting regulations that would permit the recovery of monetary

relief from individual prison officials. McCarthy, 112 S. Ct. at

1091-92; Garrett, 127 F.3d at 1267. If such remedies were

available, § 1997e would require exhaustion of those remedies prior

to suit. McCarthy, 112 S. Ct. at 1091-92; Garrett, 127 F.3d at

1267. Absent such remedies, however, we decline to interpret

§ 1997e in a manner that requires exhaustion of unavailable

remedies.

3
McCarthy reflects that whether the Bureau of Prisons has
authority, absent congressional action, to enact regulations
permitting monetary settlement of a Bivens claim is an open
question. See 112 S. Ct. at 1091 n.6 (“Nothing in the record
indicates that this authority has ever been exercised to recompense
a prisoner with a Bivens claim.”); id. at 1092 (“Even without
further action by Congress, we do not foreclose the possibility
that the Bureau itself may adopt an appropriate administrative
procedure consistent with congressional intent.”).

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 Given that Whitley has narrowed his complaint to seek

exclusively monetary relief, he was not required to pursue

administrative remedies prior to filing suit, and the district

court’s dismissal of his Bivens claim for denial of medical care

against the individual defendants was error.

IV.

Neither is the district court’s dismissal of Whitley’s denial

of medical care claim against the individual defendants harmless

error. The district court entered an alternative holding that

Whitley’s Eighth Amendment claim for denial of medical care, even

if exhausted, was frivolous within the meaning of 28 U.S.C.A.

§ 1915(e)(2)(B)(i). We disagree. Whitley’s Eighth Amendment claim

has substantial support in the law. See, e.g., Helling v.

McKinney, 113 S. Ct. 2475 (1993) (Eighth Amendment claim that

prison officials were deliberately indifferent to serious medical

needs can be based upon present and future harm from exposure to

environmental tobacco smoke); Rochon v. City of Angola, 122 F.3d

319 (5th Cir. 1997) (claim for exposure to environmental tobacco

smoke is sufficiently well established on the basis of Helling to

defeat an official’s assertion of entitlement on the basis of the

pleadings to qualified immunity). Whitley’s claim that he was

unwillingly exposed to environmental tobacco smoke also finds

substantial factual support in the record. Whitley tendered a copy

13
of the prison’s policy, which provides that “[t]o the maximum

extent practicable nonsmoking inmates shall be housed in nonsmoking

living quarters,” and that “[w]hen feasible, separate dormitories

shall be provided for nonsmoking inmates, desiring such housing.”

Another prison document provided to Whitley spells out his rights

to medical care. That document states “[y]ou have the right to a

safe, clean and healthy environment, including smoke free living

areas.”

Whitley identified himself as a nonsmoker and requested

nonsmoking living quarters when he was processed into the prison in

August 1996. That same month Whitley formally requested a transfer

to a nonsmoking unit, stating that the smoke was making him ill.

In September 1996, the prison doctor issued a medical report that

Whitley needed nonsmoking quarters. In other papers filed with the

prison or prison authorities, Whitley claims to have suffered from

bronchitis and a facial rash associated with the smoking

environment.

We need not decide, at this stage of the litigation, whether

Whitley will ultimately be able to establish an Eighth Amendment

violation. The defendants have not even answered the suit. It is

sufficient to say that the claim merits further development and

dismissal as frivolous would be improper. Horton, 70 F.3d at 401.

For the foregoing reasons, the district court’s dismissal of

Whitley’s Eighth Amendment claim that prison officials demonstrated

14
a deliberate indifference to his medical needs by exposing him to

environmental tobacco smoke is reversed, and the cause remanded for

further proceedings consistent with this opinion.

V.

Whitley’s obligation to pursue administrative remedies prior

to filing his Federal Tort Claims Act (FTCA) claim against the

Bureau of Prisons is likewise governed by federal statute. See 28

U.S.C.A. § 2675(a); see also id. § 2673. The federal regulations

contain separate regulatory provisions providing an administrative

procedure and administrative remedies for FTCA claims. See 28

C.F.R. §§ 0.95-0.97, 0.172, 14.1-14.11; see also Garrett, 127 F.3d

at 1266. Those regulations grant the Director of the Bureau of

Prisons limited authority to settle prisoner claims brought

pursuant to the FTCA. See 28 C.F.R. § 0.172; see also Garrett, 127

F.3d at 1266. Even though those remedies would not have completely

answered Whitley’s initial demand for damages, Whitley was required

to pursue and failed to pursue available remedies that could have

afforded him substantial monetary recovery.

The district court’s dismissal of Whitley’s FTCA claim for

denial of medical care against the Bureau of Prisons for non-

exhaustion was proper and is affirmed.

WHITLEY’S DISCRIMINATION CLAIMS

15
 Whitley claims that individual prison officials and the Bureau

of Prisons discriminated against him on the basis of his race and

on the basis that he is from St. Louis. The district court

dismissed these claims for non-exhaustion.

Our analysis of Whitley’s obligation to pursue administrative

remedies with respect to his denial of medical care claim applies

with equal force in this context. Whitley is seeking exclusively

monetary relief. The Bureau of Prisons has not enacted

administrative remedies capable of providing Whitley with a

monetary recovery against the individual officers. Section 1997e

does not require Whitley to pursue unavailable remedies.

Therefore, the district court’s dismissal of Whitley’s

discrimination claim against the individual officials for non-

exhaustion was error.

With respect to Whitley’s discrimination claim, however, we

conclude that any such error was harmless. Whitley’s complaint

alleges that he suffered discrimination on the basis of race and

place of origin. Dismissal as frivolous is appropriate where a

prisoner’s claim lacks any factual or legal basis in the law.

Horton, 70 F.3d at 400. Whitley’s claim of racial and locality

discrimination is supported only by his claim that defendant Hunt

made a comment at some undisclosed time and in some undisclosed

context about the way “you people” talk. Whitley never even

specifies his race in his pleadings, and does not articulate why

16
discrimination on the basis that he is from St. Louis would be

unlawful. Whitley’s discrimination claims, which the district

court characterized as “conclusory,” are without factual support

and legal support. For that reason, the district court’s dismissal

of Whitley’s discrimination claim against the individual defendants

may be affirmed on the basis that such claim is frivolous within

the meaning of 28 U.S.C.A. § 1915(e)(2)(B)(i).

With respect to his discrimination claim against the Bureau of

Prisons, Whitley was obligated to exhaust administrative remedies.

Whitley failed to exhaust those remedies. Accordingly, the

district court’s dismissal of Whitley’s discrimination claim

against the Bureau of Prisons was likewise proper, either for non-

exhaustion or because such claim is frivolous.

The district court’s dismissal of Whitley’s discrimination

claim against the Bureau of Prisons is affirmed.

WHITLEY’S CLASSIFICATION CLAIM

Whitley claims that prison officials intentionally relied upon

inaccurate records to raise his security classification, in

violation of the Privacy Act, 5 U.S.C.A. § 552a. Whitley has

likewise lodged this claim against both the individual defendants

and the Bureau of Prisons. The district court dismissed this claim

as frivolous. Having concluded a de novo review of the record, we

agree.

17
 In August 1996, when Whitley arrived at the Texarkana

facility, his offense was characterized as “high severity” and his

security classification was “minimum.” Prison authorities later

changed the characterization of Whitley’s offense from “high

severity” to “greatest severity” and his security classification

from “minimum” to “low.” Whitley’s status was changed because

Whitley’s presentence report states that Whitley’s offense involved

a firearm. In changing Whitley’s classification, the Bureau of

Prisons relied upon Bureau of Prisons Program Statements defining

Whitley’s offense as a crime of violence requiring a “greatest

severity” classification. See Federal Bureau of Prisons, United

States Dep’t of Justice, Program Statement No. 5100.06, Security

Designation and Custody Classification Manual; Program Statement

No. 5162.02, Definition of Term, "Crimes of Violence."

Whitley was convicted of conspiracy to distribute and

possession with intent to distribute cocaine, in violation of 18

U.S.C.A. §§ 841(a)(1) and 846. The record reflects that Whitley

stipulated to the sentencing court that guns were present with the

drugs during the offense. In addition, Whitley concedes that his

PSR accurately reports that several firearms were seized from his

home. Whitley nonetheless claims that there is a misunderstanding

because he was in lawful possession of the firearms. Whitley’s

classification claim is premised upon the fact the Bureau of

Prisons officials refused to contact the probation officer or the

18
federal district court to clarify that he was in lawful, rather

than unlawful, possession of firearms.

Inmates have no protectable property or liberty interest in

custodial classification. Wilson v. Budney, 976 F.2d 957, 958 (5th

Cir. 1992); Moody v. Baker, 857 F.2d 256, 257-58 (5th Cir. 1988).

The classification of prisoners is a matter within the discretion

of prison officials. McCord v. Maggio, 910 F.2d 1248, 1250 (5th

Cir. 1990). Absent an abuse of discretion, federal courts are

loathe to interfere with custodial classifications established by

prison officials. See Jackson v. Cain, 864 F.2d 1235 (5th Cir.

1989).

Whitley’s Privacy Act claim requires proof that the defendants

“willfully or intentionally” failed to correct inaccurate

information about his sentence, that was erroneously relied upon to

establish his security classification. See 5 U.S.C.A.

§ 552a(g)(1)(C), (g)(4). Whitley is essentially claiming that his

sentence itself was incorrectly entered. That is an issue that

should have been resolved on direct appeal from his criminal

conviction.

The district court concluded, based upon these principles of

law, that there was no factual or legal basis for Whitley’s claim

that prison officials abused their discretion by relying upon the

sentence imposed against Whitley to determine his classification.

We review that determination for an abuse of discretion, Denton v.

19
Hernandez, 112 S. Ct. 1728, 1734 (1992), and find none.

The district court’s dismissal of Whitley’s classification

claim as frivolous is affirmed.

WHITLEY’S RETALIATION CLAIMS

Whitley also alleges that the defendants have engaged in

miscellaneous other acts of retaliation because he complained about

being placed in a smoking environment. Whitley’s claims in this

regard are not well organized but involve a multitude of relatively

minor offenses that would not give rise to a cognizable cause of

action against either the individual defendants or the Bureau of

Prisons. For example, Whitley claims he was denied the top bunk in

his cell when his roommate moved out. Whitley also complains that

prison officials did not allow another inmate to accompany him when

he reviewed his files.

Since the district court entered final judgment, Whitley has

filed additional pleadings and letters. Among those filings is

Whitley’s motion to supplement his pleadings to include additional

slights by prison officials. The district court has not entered

any disposition of that request and our records do not reflect that

any motion has been filed to supplement the record in this Court.

Therefore, it does not appear that Whitley’s supplemental pleadings

are properly before this Court. To the extent Whitley registered

complaints of retaliation prior to the district court’s judgment,

20
those claims were dismissed as frivolous, and that disposition is

affirmed. To the extent he has registered additional complaints

since that time, the district court has not addressed the issues,

and those claims are not properly before this Court.

We affirm the district court’s dismissal of Whitley’s

retaliation claims as frivolous.

CONCLUSION

The district court’s dismissal of Whitley’s denial of medical

care claim against individual defendants Hunt, Moore, and Williams

for non-exhaustion is REVERSED and the cause REMANDED for further

proceedings consistent with this opinion. The district court’s

dismissal of Whitley’s denial of medical care claim against the

Bureau of Prisons for non-exhaustion is AFFIRMED.

The district court’s dismissal of Whitley’s discrimination

claims against all defendants is AFFIRMED. The district court’s

dismissal of Whitley’s classification claims against all defendants

is AFFIRMED. The district court’s dismissal of Whitley’s

retaliation claims against all defendants is AFFIRMED.

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