United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 20, 2004
Charles R. Fulbruge III
Clerk
No. 03-40787
Summary Calendar
HENRY PARKER,
Plaintiff-Appellant,
versus
LOMO ADJETEY; CAROL A. MCAFEE,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-00-CV-625
Before JONES, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
Henry Parker, Texas Inmate No. 287830, proceeding pro se
and in forma pauperis (“IFP”), appeals the district court’s
dismissal of his civil rights complaint pursuant to 42 U.S.C.
§ 1997e for failure to exhaust administrative remedies. Parker
contends that he could not exhaust administrative remedies because
he was hospitalized and in a coma. He asserts that when he was
released from the hospital, the 15-day period for filing a timely
*
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this opinion should not be published and is not precedent except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.
Step One grievance had expired. He asserts that he pursued the
only remedy that was available to him and that an attempt to file
a grievance would have been futile. Parker explains that the
prison’s grievance procedure prohibits the submission of grievances
based on incidents that occurred more than 30 days prior to the
submission of the grievance.
We review de novo the dismissal pursuant to 42 U.S.C.
§ 1997e of a 42 U.S.C. § 1983 complaint for failure to exhaust
administrative remedies. Days v. Johnson, 322 F.3d 863, 865
(5th Cir. 2003). As amended, 42 U.S.C. § 1997e(a) (West 2003)
provides that:
No action shall be brought with respect to prison
conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison,
or other correctional facility until such administrative
remedies as are available are exhausted.
Exhaustion is mandatory; and we have strictly construed the
exhaustion requirement of 42 U.S.C. § 1997e. Days, 322 F.3d
at 866.
In Days, a Texas inmate alleged that he was unable to
comply timely with the prison grievance procedure due to a serious
injury. We vacated the district court’s dismissal of his complaint
for failure to exhaust administrative remedies and remanded the
case. We determined that because Days’ injury prevented him from
timely filing a grievance and his untimely grievances were returned
unprocessed, Days had exhausted the administrative remedies that
were personally available to him. 322 F.3d at 867.
2
Unlike the inmate in Days, Parker did not attempt to
exhaust the administrative remedies that were personally available
to him. Accordingly, we AFFIRM the dismissal of Parker’s civil
rights complaint for failure to exhaust available administrative
remedies.
AFFIRMED.
3