UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60234
Summary Calendar
DAVID MARSHALL,
Plaintiff-Appellant,
versus
JOE PRICE, Sheriff; BRUCE CARVER;
DIANE EDRINGTON, also known as
Nurse Diane,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
(1:97-CV-167-GR)
November 6, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
David Marshall, Mississippi prisoner # 66294, appeals from the
summary judgment granted defendants in this 42 U.S.C. § 1983
action. (Marshall requested the appointment of counsel by the
district court and on appeal. The district court did not abuse its
discretion in denying the request; likewise, the request for
appointment of counsel on appeal is DENIED. Jackson v. Dallas
*
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that this opinion should not be published and is not precedent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.
Police Dep’t, 811 F.2d 260, 261 (5th Cir. 1986); Ulmer v.
Chancellor, 691 F.2d 209, 213 (5th Cir. 1982).)
Marshall claims that, while in post-conviction confinement at
a county jail from 12 April through 31 October 1996, he was forced
to sleep on a mattress on the jail floor, denied pastoral visits in
retaliation for complaints about the conditions of his confinement,
and denied adequate medical and dental treatment.
The magistrate judge recommended that summary judgment be
awarded against Marshall on the merits; in the alternative, because
Marshall had not exhausted his administrative remedies. The
district court agreed as to both bases and adopted the report and
recommendation. The action was dismissed with prejudice.
Because Marshall has failed to exhaust his administrative
remedies, as required by 42 U.S.C. § 1997e(a), we do not reach the
merits of his claims. Such remedies were made available by the
enactment of the Administrative Remedy Program (ARP). Gates v.
Collier, GC71-6-S-D (N.D. Miss. 19 Feb. 1994).
Marshall contends that the ARP was not available to him
because he was housed in a county jail and had not yet been sent to
the state prison. However, the ARP is in place at all of the state
prison facilities, and it applies to state inmates housed in county
jails or detention centers. Potts v. Pope, 1:94-cv-342 GR (S.D.
Miss. 22 Aug. 1995). Marshall’s allegation that he did not have
access to the ARP because he was not issued a prison number is
meritless. There is no evidence in the record that he attempted to
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exhaust his remedies through the ARP and was denied access because
he did not have such a number.
In sum, Marshall was a state-convicted inmate at the time of
the events giving rise to the allegations in his complaint, and,
therefore, was required to comply with the state prison’s
administrative remedy program. Because he did not, we AFFIRM the
summary judgment awarded against him. Concomitantly, the dismissal
is to be without prejudice. Accordingly, this matter is REMANDED
for entry of an amended judgment, dismissing this action without
prejudice.
MOTION DENIED; AFFIRMED in PART;
REMANDED for ENTRY OF JUDGMENT
OF DISMISSAL WITHOUT PREJUDICE
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