United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 9, 2006
Charles R. Fulbruge III
No. 05-60296 Clerk
Summary Calendar
RONALD L. COLE, SR.,
Plaintiff-Appellant,
versus
MAUD IRBY; CORRECTIONAL MEDICAL SERVICES;
D. LUNSFORD, also known as unknown LUNSFORD;
THERESA BURTON; AMMED ZEIN,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:03-CV-1151
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Ronald L. Cole, Sr., a Mississippi prisoner (# L1717),
appeals the district court’s order granting motions to dismiss by
the defendants-appellees, on the ground that he failed to exhaust
administrative remedies as required by 42 U.S.C. § 1997e(a) with
respect to his 42 U.S.C. § 1983 civil rights action. In his
complaint, Cole alleged that the defendants had failed to treat
his various medical problems, that they had confiscated his
medicine and medical equipment, and that they allowed black
*
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that this opinion should not be published and is not precedent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. 05-60296
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inmates to threaten and control white elderly and disabled
inmates like him.
Under 42 U.S.C. § 1997e(a), a prisoner may not bring a
civil-rights action until he has exhausted “available”
administrative remedies. The § 1997e(a) exhaustion requirement
is “mandatory, ‘irrespective of the forms of relief sought and
offered through administrative avenues.’” Days v. Johnson, 322
F.3d 863, 866 (5th Cir. 2003) (quoting Booth v. Churner, 532 U.S.
731, 739, 741 n.6 (2001)). Cole only summarily challenges the
district court’s conclusion that he failed to comply with the
Administrative Remedy Program (ARP) operated by the Mississippi
Department of Corrections (MDOC). The appellees asserted and the
district court determined that Cole had never filed any ARP
grievance with respect to medical treatment. Cole, however, has
consistently asserted that, on March 15, 2003, he submitted a
grievance letter to the ARP Legal Claims Adjudicator, in which he
alleged that defendant Nurse Lunsford failed to treat him. He
has also repeatedly asserted that prison officials never
responded to this letter.
Even if it is assumed arguendo that Cole filed a proper ARP
grievance with respect to Lunsford, he has failed to dispute the
magistrate judge’s determination–-adopted by the district court–-
that he has never asserted that he completed the ARP process.
Although dismissals under § 1997e are “‘made on the pleadings
without proof,’” Days, 322 F.3d at 866 (citation omitted), Cole
No. 05-60296
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has not alleged with sufficient specificity that he attempted to
comply with ARP appeal requirements. Moreover, the March 15,
2003, letter to which Cole has referred appears to raise only a
limited claim against defendant Lunsford, but it does not
specifically refer to the allegations that Cole has made against
other defendants in the instant action.
We conclude that the district court did not err in
determining that Cole had failed to exhaust administrative
remedies. Accordingly, we affirm the judgment, but we modify the
judgment to be “without prejudice.” See Wright v. Hollingsworth,
260 F.3d 357, 359 (5th Cir. 2001).
AFFIRMED AS MODIFIED.