IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-41063
Summary Calendar
FLOYD MURRAY,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION, ET AL.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:97-CV-606
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January 25, 1999
Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges
PER CURIAM:*
Floyd Murray, Texas state prisoner # 520390, appeals the
district court’s dismissal of his civil rights complaint without
prejudice for failure to exhaust administrative remedies. See 42
U.S.C. § 1997e(a). The district court dismissed Murray’s
complaint under § 1997e(a), reasoning that under amended 1997e,
exhaustion of administrative remedies was a mandatory
prerequisite to filing a 42 U.S.C. § 1983 complaint.
*
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that this opinion should not be published and is not precedent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. 97-41063
-2-
The district court did not have the benefit of our recent
decision, Whitley v. Hunt, 158 F.3d 882, 887 (5th Cir. 1998). In
Whitley, 158 F.3d at 885-87, this court clarified that under
amended 1997e, “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.” Because Murray
sought exclusively monetary relief, he may not have been required
to pursue administrative remedies prior to filing suit. See
Whitley, 158 F.3d at 887; Marsh v. Jones, 53 F.3d 707, 710 (5th
Cir. 1995); McCarthy v. Madigan, 503 U.S. 140, 150-52 (1992).
The district court’s dismissal of Murray’s civil rights
complaint for non-exhaustion is VACATED and the cause REMANDED
for the court to address the issue whether monetary relief is
available through the grievance procedure. See id. If monetary
relief is available, dismissal for non-exhaustion of
administrative remedies is appropriate. If, however, monetary
relief is unavailable, Murray should not be required to exhaust
administrative remedies prior to filing suit. See Whitley, 158
F.3d at 885-87.
VACATED AND REMANDED.