United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 28, 2005
Charles R. Fulbruge III
Clerk
No. 04-30867
Summary Calendar
WILLIE L WASHINGTON,
Plaintiff-Appellant,
versus
VENETIA MICHAEL; MICHAEL RHODES; CHAROLETTE APPEL;
INSURANCE CO., Unknown,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:03-CV-1586-DEW
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Willie L. Washington, Louisiana prisoner # 77381, appeals
the district court’s dismissal of his civil rights action against
various prison officials for failure to exhaust administrative
remedies.
In addition to arguing the merits of his case, Washington
argues on appeal that he “made not one (1), but two (2) attempts
to file Administrative Remedies,” both of which were rejected,
and that an administrative remedy procedure (ARP) screening
*
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this opinion should not be published and is not precedent except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.
No. 04-30867
-2-
officer stated in a memorandum to Washington, “Once an ARP has
been rejected, you have exhausted your Administrative Remedies.”
However, in the district court, Washington did not object to, but
agreed with, the magistrate judge’s finding that he had failed to
exhaust his administrative remedies. Accordingly, our review is
for plain error. See Douglass v. United Servs. Auto. Ass’n, 79
F.3d 1415, 1428-29 (5th Cir. 1996)(en banc).
Washington has not shown that he has exhausted his
administrative remedies; he does not argue that he appealed the
rejection of either ARP or that the second ARP was an appeal of
the first, and there is no indication of this in the record. See
22 LA. ADMIN. CODE, Pt. I, § 325(G)(1), (2). Furthermore, because
the memorandum is not in the record on appeal and was in fact
written after the district court entered its decision, this court
need not consider it as evidence of an administrative procedural
policy, futility, or a waiver of the exhaustion requirement. See
Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir.
1999) (appellate court may not consider evidence presented for
first time on appeal or facts not before the district court at
the time of the district court’s ruling).
Accordingly, the district court did not plainly err in
dismissing Washington’s complaint for failure to exhaust
administrative remedies.
AFFIRMED.