Wright v. Hollingsworth

                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT
                      _______________________

                           No. 99-40063
                     _______________________

                          MARK ERIC WRIGHT,

                                               Plaintiff-Appellant,

                               versus

                GAYLE HOLLINGSWORTH, ETC., ET AL,
                                                        Defendants,

        GAYLE HOLLINGSWORTH, Registered Nurse at Telford,
              Individually and in official capacity,

                                               Defendant-Appellee.


_________________________________________________________________

           Appeal from the United States District Court
                 for the Eastern District of Texas
_________________________________________________________________
                           July 24, 2001


Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

          This case returns to us for rehearing and renews the

question whether the district court properly dismissed, for failure

to exhaust prison grievance remedies, the appellant’s § 1983 claim

against a prison nurse.

          In Booth v. Churner, ____ U.S. ____, 121 S.Ct. 1819

(2001), the Supreme Court held that Congress intended a prisoner to
invoke “such administrative remedies as are available” in the

prison, without regard to whether the grievance procedure affords

money damage relief, before he may file suit contesting prison

conditions in federal court.      42 U.S.C. § 1997e(a) (West Supp.

1999).     Before Booth was decided, the instant case had been voted

en banc to reconsider such of our decision as Whitley v. Hunt, 158

F.3d 882 (5th Cir. 1998), that did not mandate exhaustion.    After

Booth, this case was remanded from en banc court to the original

panel because the Supreme Court’s decision effectively overruled

Whitley.

            Quibbles about the nature of a prisoner’s complaint, the

type of remedy sought, and the sufficiency or breadth of prison

grievance procedures were laid to rest in Booth.     Justice Souter

summed up the Court’s conclusion in a footnote:

     Here, we hold only that Congress has provided in §
     1997e(a) that an inmate must exhaust irrespective of the
     forms of relief sought and offered through administrative
     sources.

121 S.Ct. at 1825, n.6.    The major issue raised by Wright, that he

need not exhaust if money damages were unavailable through the

grievance procedure of the Texas Department of Criminal Justice, is

thus resolved.

            Wright asserts other issues, however, in light of Booth

and in response to this panel’s request for supplemental letter

briefs on remand.      First, Wright contends that “in contrast to


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Booth”, his complaint seeks redress for his injury (a ruptured

eardrum) and pain and suffering, harms that can only be relieved by

money damages.      This is but another way of narrowly parsing the

“available” “remedies” language in § 1997e(a); it legally and

factually mischaracterizes Booth, where only money damages were

sought when the case got to court; and it is unconvincing.

             Second, Wright alleges that he substantially complied

with the TDCJ administrative procedures by filing a Step One

grievance, which put the prison on notice of his complaint and

offered the authorities an opportunity to mediate the dispute. But

he did not pursue the grievance remedy to conclusion.                Nothing in

the Prison Litigation Reform Act,1 however, prescribes appropriate

grievance procedures or enables judges, by creative interpretation

of    the   exhaustion   doctrine,      to   prescribe   or   oversee    prison

grievance systems.       TDCJ has promulgated a detailed, complex and

carefully     thought-out     program       to   facilitate   the   filing   of

grievances and assure their prompt, dispassionate investigation.

The   PLRA   required    Wright    to   exhaust     “available”     “remedies”,

whatever they may be.         His failure to do so prevents him from

pursuing a federal lawsuit at this time.2



       1
             Pub. L. No. 104-34, Title I, § 101(a), 110 Stat. 1321-71 (1996).
       2
            The 42 U.S.C. § 1997e exhaustion requirement is not jurisdictional
and may be subject to certain defenses such as waiver, estoppel or equitable
tolling. Underwood v. Wilson, 151 F.3d 292, 294-95 (5th Cir. 1998).

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          Third, Wright criticizes Hollingsworth, the remaining

defendant, for not timely raising her exhaustion defense in the

district court.   Even if we allow that the procedural development

of this case has been erratic, it is too late for Wright’s waiver

claim, newly raised after three years of litigation and after

remand from the Supreme Court.

          Wright’s   final   points   request,   if   all   else   fails,

dismissal without prejudice and equitable tolling of the Texas

statute of limitations during the pendency of this action and any

additional state administrative proceedings.      These modifications

of the judgment are appropriate.      See Wendell v. Asher, 162 F.3d

887, 892 (5th Cir. 1998) (dismissal without prejudice); Harris v.

Hegman, 198 F.3d 153, 157-59 (5th Cir. 1999) (under PLRA exhaustion

requirement, limitations on a prisoner’s § 1983 claims is tolled

during administrative proceedings).

          For the foregoing reasons, the judgment of the district

court is AFFIRMED as MODIFIED, i.e., Wright’s case is dismissed

without prejudice pending exhaustion of TDCJ grievance procedures

and limitations will be tolled pending exhaustion.

          AFFIRMED as MODIFIED.




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