IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40391
Summary Calendar
LEROY ADAMS, JR.,
Plaintiff-Appellant,
versus
JOHN LAYNE, Employee, Michael Unit;
ASA O. JEFFCOAT, JR., Employee,
Michael Unit, Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:96-CV-742
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June 14, 1999
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Leroy Adams appeals the dismissal of his civil rights
complaint as frivolous, pursuant to 28 U.S.C. § 1915A(b)(1), and
for failure to exhaust administrative remedies, pursuant to
42 U.S.C. § 1997e. Adams argues that the district court erred when
it dismissed his case as frivolous, because he paid a partial
filing fee. Under the provisions of 28 U.S.C. § 1915A(b)(1), the
district court may dismiss a prisoner’s suit regardless of filing
fee status if it deems the complaint frivolous. Martin v. Scott,
156 F.3d
*
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should not be published and is not precedent except under the limited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.
578, 580 (5th Cir. 1998), petition for cert. filed (Dec. 22, 1998)
(No. 98-9113).
Adams argues that the district erred when it dismissed his
excessive-use-of-force claim for failing to exhaust administrative
remedies because such remedies are unavailable, given that he seeks
monetary relief only. The district court did not have the benefit
of Whitley v. Hunt, 158 F.3d 882, 887 (5th Cir. 1998), in which
this court clarified that under amended § 1997e, prisoners need not
pursue prison administrative remedies when they are seeking
exclusively monetary relief and there are no prison remedies
capable of affording such relief. Because Adams sought exclusively
monetary relief on his excessive-use-of-force claim, he may not
have been required to pursue administrative remedies before 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 dismissal of Adams’s excessive-use-of-force claim for non-
exhaustion is vacated in part and the case remanded for the
district court to address the issue whether monetary relief is
available through the prison grievance procedure. See id. If
monetary relief is available, dismissal for non-exhaustion of
administrative remedies is appropriate. If, however, monetary
relief is unavailable, Adams should not be required to exhaust
administrative remedies before filing suit. See Whitley, 158 F.3d
at 885-87.
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Adams argues that the district court erred when it dismissed
his substantive due process claim as frivolous. Adams does not
make the requisite allegation that the defendants violated his due
process rights for retaliatory reasons; nor has he shown a
favorable termination of the charge against him, especially
considering his assertion that he was found guilty. See Woods v.
Smith, 60 F.3d 1161, 1165 n.16 (5th Cir. 1995). The court did not
abuse its discretion in dismissing this claim. See Siglar v.
Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
Adams also challenges the dismissal of his procedural due
process claims as frivolous. The record indicates that Adams
received the process he was due. See Sandin v. Conner, 515 U.S.
472, 474 (1995); Wolff v. McDonnell, 418 U.S. 539, 563-66 (1974).
The dismissal of this claim was not an abuse of discretion. See
Siglar, 112 F.3d at 193.
AFFIRMED IN PART and VACATED and REMANDED IN PART.
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