IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-30803
_______________
JERROD A. WILSON,
Plaintiff-Appellant,
VERSUS
MARIE BOISE; BURL CAIN; RICHARD L. STALDER,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Middle District of Louisiana
_________________________
March 30, 2001
Before REAVLEY, SMITH, and DeMOSS, interfered with his mail in violation of his
Circuit Judges. constitutional rights. The magistrate judge
dismissed one claim of interference and the
JERRY E. SMITH, Circuit Judge:* retaliation claim for failure to exhaust admin-
istrative remedies. It dismissed the
Jerrod Wilson, a Louisiana prisoner, remaining interference claim as frivolous.
appeals a judgment of dismissal of his claims We affirm on a different ground.
against prison officials. He alleges that they
I.
Wilson sued Mailroom Supervisor Marie
*
Boise, Warden Burl Cain, and Secretary
Pursuant to 5TH CIR. R. 47.5, the court has
Richard Stadler (collectively “prison
determined that this opinion should not be
officials”) for violation of his constitutional
published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R. rights under 42 U.S.C. § 1983. Wilson
47.5.4. alleged that Boise violated his rights by
confiscating his mail addressed to an Amendment right to counsel, his Fourth
attorney in retaliation for his filing of Amendment right to be free from
administrative grievances against her and unreasonable searches and seizures, and the
that prison personnel withheld or mishandled prison’s regulations. He prayed for
other pieces of mail. Wilson also complained injunctive relief both against the rule and
that prison officials prevented him from against the alleged interference with his mail.
exhausting his administrative remedies by
placing his Administrative Remedy
Procedure forms on backlog pursuant to the The district court dismissed his complaint
grievance system’s “abuse of the procedure” and adopted the magistrate judge’s order
rule. He requested declaratory and without considering the issues raised in these
injunctive relief, monetary damages, and a motions. Wilson argues that the court
transfer to a different institution. (1) should have construed his “response to
show cause and for injunction” and his “tra-
The magistrate judge dismissed Wilson’s verse” as motions for leave to amend the
claims of retaliation and interference with le- complaint, (2) erred in dismissing his mail-
gal mail for failure to exhaust administrative tampering claims for failure to exhaust
remedies under 42 U.S.C. § 1997e(a).1 The administrative remedies, and (3) that we
court dismissed his claim of interference with should appoint counsel on appeal.
mail addressed to an attorney as frivolous
without reaching the question of exhaustion.2 II.
Wilson claims that the court should have
Wilson then filed a “response to show construed his “response” and his “traverse”
cause and for injunction” and a “traverse,” as motions for leave to amend the complaint.
complaining that the “abuse of the He did not request such leave from the
procedure” rule violated his First magistrate judge, but courts must grant leave
Amendment rights of free speech and to amend freely when justice so requires.
association. He raised a new claim that the FED. R. CIV. P. 15(a).
defendants had violated his Sixth
We review failure to allow the
amendment for abuse of discretion. United
1
The statute reads: “No action shall be States v. Riascos, 76 F.3d 93, 94 (5th Cir.
brought with respect to prison conditions under 1996). Rule 15(a) “circumscribes the
section 1983 of this title, or any other Federal exercise of the district court’s discretion;
law, by a prisoner confined in jail, prison, or thus, unless a substantial reason exists to
other correctional facility until such deny leave to amend, the discretion of the
administrative remedies as are available are district court is not broad enough to permit
exhausted.” 42 U.S.C. § 1997e(a).
denial.” Shipner v. E. Air Lines, Inc., 868
2
Wilson claims, on appeal, that he sought an F.2d 401, 407 (11th Cir. 1989) (dictum). In
attorney both in civil matters concerning prison discerning the presence of said “substantial
conditions and in matters relating to his criminal reason,” the district court may consider such
conviction. His administrative complaints, factors as “undue delay, bad faith, dilatory
however, indicate that the mail in fact related to motive on the part of the movant, repeated
civil matters.
2
failure to cure deficiencies by amendments of his previous claims. An amendment to
previously allowed, undue prejudice to the add them would be futile. Wilson does,
opposing party, and futility of amendment.” however, claim, for the first time in his
Jacobsen v. Osborne, 133 F.3d 315, 318 traverse, that the prison officials violated (1)
(5th Cir. 1998) (quoting In re Southmark his Sixth Amendment right to counsel, (2)
Corp., 88 F.3d 311, 314-15 (5th Cir. 1996)). prison regulations interfering with his legal
A denial “without any justifying reason,” mail, and (3) his Fourth Amendment right to
however, “is not an exercise of that dis- be free from unreasonable searches and
cretion; it is merely an abuse of that seizures.
discretion and inconsistent with the spirit of
the Federal Rules.” Lowery v. Tex. A & M 1.
Univ. Sys., 117 F.3d 242, 245 (5th Cir. The Sixth Amendment provides that “[i]n
1997) (quoting Foman v. Davis, 371 U.S. all criminal prosecutions, the accused shall
178, 182 (1962)). An amendment is futile if enjoy the right to . . . have the assistance of
it lacks legal foundation or was presented in counsel for his defense.” U.S. CONST.
a prior complaint. Jamieson v. Shaw, 772 amend. VI. Although intrusion into the
F.2d 1205, 1208-11 (5th Cir. 1985). attorney-client relationship may constitute a
violation of the Sixth Amendment, cf.
A. Weatherford v. Bursey, 429 U.S. 545, 552-
Rule 15(a) allows Wilson to amend his 53 (1977), the plain language of the Sixth
pleading once as of right before the Amendment protects the attorney-client
defendants filed a responsive pleading. correspondence only in the criminal setting.
Wilson’s response to the magistrate judge’s Wolff v. McDonnell, 418 U.S. 539, 576
order to show cause raised a new claim that (1974). Wilson’s claims are civil. Thus,
prison officials interfered with his incoming amending the complaint to include this claim
legal mail in February 2000. The defendants would be futile, because the claim does not
had not filed a responsive pleading at that have a valid legal basis. The magistrate
time, so the magistrate judge should have judge did not abuse her discretion in failing
treated this motion as an amendment as of to construe Wilson’s motion as doing so.
right.
Because the magistrate judge properly re-
Because Wilson is entitled to only one fused to consider this claim, it is in effect
amendment as of right, he needed to request raised for the first time on appeal. We will
leave from the court to amend his complaint not consider a new theory of relief so raised.
to raise new issues. A court may construe an Leverette v. Louisville Ladder Co., 183 F.3d
issue raised for the first time in a traverse as 339, 342 (5th Cir. 1999), cert. denied, 528
a motion for leave to amend. Riascos, 76 U.S. 1138 (2000).
F.3d at 94. By extension, we treat new
issues raised in the “response to show cause 2.
and for injunction” as motions for leave to Wilson’s claim that interference with his
amend, as well. mail violated prison regulations also lacks a
legal foundation. A violation of prison
In these motions, Wilson repeats several regulations, without more, does not give rise
3
to a federal constitutional violation. exhausted his administrative remedies “when
Hernandez v. Estelle, 788 F.2d 1154, 1158 the time limits for the prison’s response set
(5th Cir. 1986). The magistrate judge need forth in the prison Grievance Procedures
not have allowed amendment of Wilson’s have expired.” Id. at 295.
complaint to include this claim, because it
would have been futile to do so. Louisiana provides a three-step system of
review for grievances in which offenders
3. submit complaints to the warden, and prison
Wilson claims, in his traverse, that the in- officials have a prescribed number of days in
terference with his legal mail violated his which to respond. The “abuse of the
rights under the Fourth Amendment. We procedure” rule provides that if an offender
need not reach this issue, because Wilson’s submits multiple requests during the first
failure to exhaust his administrative remedies stage of handling of his first request, that
requires us to dismiss the underlying claim.3 request will be processed, but the rest will be
backlogged for handling at the warden’s
III. discretion. Wilson believes that this rule is
Wilson argues that the magistrate judge unconstitutional and that the district court
erred in dismissing his claims for interference erred in using it to find that he failed to
with his legal mail and retaliation for use of exhaust.
the prison grievance procedures for failure to
exhaust administrative remedies under 42 A.
U.S.C. § 1997e(a). He believes that he Wilson argues that the “abuse of the pro-
could not exhaust such remedies because his cedure” rule violates his constitutional right
claims were unconstitutionally backlogged to file a grievance and receive a response.
pursuant to the “abuse of the procedure” He further complains that the magistrate
rule. We review de novo the determination judge did not address it. In fact, no such
of a prisoner’s failure to exhaust constitutional right exists. Section 1997e of
administrative remedies in a § 1983 action. the Civil Rights of Institutionalized Persons
Powe v. Ennis, 177 F.3d 393, 394 (5th Cir. Act, 42 U.S.C. § 1997e, authorizes states to
1999). Section 1997e(a) creates a construct prison grievance procedures that
mandatory burden on the district court to district courts may require inmates to
dismiss all actions brought by prisoners who exhaust before bringing civil rights suits.
have not exhausted administrative remedies. Louisiana promulgated enabling legislation,
Underwood v. Wilson, 151 F.3d 292, 294 LA. REV. STAT. ANN. §§ 15:1171-1177
(5th Cir. 1998).4 Moreover, a prisoner has (West Supp. 1989), and the Louisiana
Department of Public Safety and Corrections
3
set up the procedure. The United States
See discussion infra part III.
District Court for the Middle District of
4
We have recognized an exception to the ex-
haustion requirement where a prisoner sues a pri-
son official exclusively for monetary damages prisoner seeks both monetary and injunctive
and the prison grievance procedure does not relief, the exhaustion requirement still applies.
provide that relief. McCarthy v. Madigan, 503 Arvie v. Stalder, 53 F.3d 702, 705-06 (5th Cir.
U.S. 140, 155 (1992). Where, as here, a 1995).
4
Louisiana approved it. Martin v. to exhaust his administrative remedies,
Catalanotto, 895 F.2d 1040, 1042 (5th Cir. because he did not appeal the prison’s
1990), abrogation on other grounds dismissal of his claim through the available
recognized by Marsh v. Jones, 53 F.3d 707 procedures.
(5th Cir. 1995). Using internal prison The plain language of 42 U.S.C.
grievance procedures is not a right at all, but § 1997e(a) precludes all actions brought by
a statutory requirement and procedural prisoners challenging prison conditions under
hurdle. § 1983 “until such administrative remedies as
are available are exhausted.” Before
By failing to address Wilson’s claim, the Congress amended that statute in 1997, it
magistrate judge implicitly dismissed it. The read “exhaustion of such plain, speedy, and
magistrate judge had the discretion to effective administrative remedies as are
dismissed the claim as frivolous. Harper v. available.” Underwood, 151 F.3d at 295
Showers, 174 F.3d 716, 718 (5th Cir. 1999) (quoting 42 U.S.C. § 1997e(a)(1) (1994)).
(stating that a court may dismiss a prisoner’s Congress obviously intended that courts
in forma pauperis civil rights claim as would enforce the exhaustion requirement
frivolous if it lacks an arguable legal basis). strictly. We must dismiss Wilson’s claim.
Cf. id. (upholding the dismissal of a
B. prisoner’s claim, even though he had filed all
Wilson failed to raise his retaliation claim possible appeals through prison grievance
in his administrative remedy proceeding doc- procedure, because he had not allowed
ument.5 Plainly, then, he has failed to officials time to respond before filing a claim
exhaust his administrative remedies. The with the district court).
district court did not err in dismissing the
claim. D.
Wilson filed complaints alleging that mail
C. tampering had occurred in July and August
Wilson filed a complaint regarding the al- 1999 and February 2000. Because these
leged interference, in February 1999, with his claims were backlogged under the “abuse of
mail to an attorney, and the prison officials the procedure” rule, he did not receive a re-
dismissed this claim as untimely. Even if that sponse through the three-step process. The
determination were in error, the district court magistrate judge found that because these
properly dismissed the claim.6 Wilson failed grievances were still being processed by pri-
son authorities, Wilson had failed to exhaust
5
his administrative remedies.
Wilson explains in his brief on appeal that
prison officials would not let him amend his Although the plain meaning of the statute
Administrative Remedy Procedure to add the
compels this result as well, a further policy
claim. He has not alleged that they had any duty
supports it. Wilson’s backlogged claims re-
to do so.
6
The district court dismissed this claim on the
basis that it was frivolous. We may affirm the 507 (5th Cir. 1999).
district court, however, on any basis supported
by the record. Berry v. Brady, 192 F.3d 504,
5
sult directly from his own litigiousness. no issues we may reach on the merits. We
Were we to hold prison authorities to the deny the motion.
standard deadlines on all claims, prisoners
could easily circumvent the requirement of AFFIRMED.
exhaustion simply by filing voluminous
numbers of complaints, knowing that the
authorities would not be able to address all
of them in a timely fashion. Requiring
absolute exhaustion may seem harsh, but the
prison regulations themselves allow for
flexibility to avoid unjust results. The
grievance procedure states:
Nothing in this procedure should serve
to prevent or discourage an offender
from communicating with the Unit
Head [warden] or anyone else in the
Department of Public Safety and
Corrections. . . . All forms of
communication to the Unit Head will
be handled, investigated, and
responded to as the Unit Head deems
appropriate.
The magistrate judge did not err in
dismissing these claims for failure to exhaust
administrative remedies.
IV.
Wilson filed a motion for appointment of
appellate counsel. A civil rights complainant
has no automatic right to the appointment of
counsel unless the case presents exceptional
circumstances. Freeze v. Griffith, 849 F.2d
172, 175 (5th Cir. 1988) (citing Ulmer v.
Chancellor, 691 F.2d 209, 212 (5th Cir.
1982)). A court may, however, appoint
counsel to represent an appellant proceeding
in forma pauperis in a civil action if the case
presents “exceptional circumstances.”
Santana v. Chandler, 961 F.2d 514, 515 (5th
Cir. 1992). Wilson’s case does not involve
exceptional circumstances; indeed, he raises
6
DeMoss, Circuit Judge, specially concurring:
My review of this case indicates that the district court properly dismissed all of Wilson's claims.
I therefore concur in the result reached by the panel majority. I write separately to register my
disagreement with the panel majority's treatment of Wilson's claims premised upon incidents alleged
to have occurred in August 1999 and February 2000. I do not read the relevant Louisiana prison
regulations to authorize Louisiana prison authorities to indefinitely (or indeed permanently) postpone
consideration of a prisoner's grievance, and thus, that prisoner's access to the federal courts. In my
view, the panel majority's reading of the relevant regulations is inconsistent with the full text of the
controlling regulations, this Court's precedent, and constitutional principles guaranteeing access to
the federal courts.
7