United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 31, 2007
Charles R. Fulbruge III
Clerk
No. 06-40055
Summary Calendar
JAMES CHARLES SMITH,
Plaintiff-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION; CHUCK BISCOE, Unit
Warden; R. ALFORD, Assistant Unit Warden; MILLER, Major;
CHRISTOPHER LACOX, Captain; K. WHITMIRE, Box Factory Worker;
KENNETH PUTMAN, Sergeant; CHRISTY PUTMAN, Law Librarian;
SHAWN A. BELNAP, Correctional Officer; CANDICE A. HAM,
Property Officer; KENNETH W. STOCKHOUSE, Law Librarian; DAVID
J. WICKER SHAW, II, Captain; PENNY LONG, Mailroom Supervisor;
YOLANDA TAMEZ, Sergeant; TIMOTHY HINDSMAN, Lieutenant;
V. BARROW, Offender Counselor; RICHARD D. MCKEE, Law Librarian,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:05-CV-177
--------------------
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
James Charles Smith, Texas prisoner # 881812, appeals the
dismissal of his 42 U.S.C. § 1983 civil rights complaint for
failure to exhaust administrative remedies pursuant to 42 U.S.C.
§ 1997e. Because Smith does not address the district court’s
*
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this opinion should not be published and is not precedent except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. 06-40055
-2-
28 U.S.C. § 1915A dismissal of his property/conspiracy claim as
frivolous, he has abandoned that claim. See Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir. 1993). Furthermore, Smith did not
assert in the district court that the defendants used a shredding
machine to prevent him from proving exhaustion. Therefore, this
court need not address this assertion. See Kelly v. Foti, 77
F.3d 819, 822 (5th Cir. 1996); Williams v. CIGNA Fin. Advisors,
Inc., 56 F.3d 656, 661 (5th Cir. 1995).
Under the Prison Litigation Reform Act (PLRA), prisoners are
required to exhaust administrative remedies before filing suit:
“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.” § 1997e(a). The Texas prison system has a two-step
formal grievance process. Johnson v. Johnson, 385 F.3d 503, 515
(5th Cir. 2004).
Smith’s complaint alleged that the defendants denied him
access to the courts when they deprived him of his legal property
and when they interfered with his legal mail. Prison officials
may not deny prisoners access to the courts. Bounds v. Smith,
430 U.S. 817 (1977); Johnson v. Rodriguez, 110 F.3d 299, 310
(1997). The magistrate judge did not include in his
characterization of Smith’s claims a denial of access to the
No. 06-40055
-3-
courts claims and referred instead to deprivation of property and
mail fraud claims.
Smith submitted Step 1 and Step 2 grievances wherein he
complained that the deprivation of his legal property denied him
access to the courts. Smith’s grievances gave prison officials
“a fair opportunity to address the problem that later formed the
basis of the instant suit.” Johnson, 385 F.3d at 517.
Therefore, the district court erred in failing to identify
Smith’s claim that he was denied access to the courts and in
dismissing it for failure to exhaust.
Smith filed a Step 1 grievance in which he complained that
prison officials exposed him to second hand smoke and denied him
adequate medical treatment. Because Smith did not demonstrate
that he also filed a Step 2 grievance relative to these claims,
the district court correctly dismissed them under § 1997e for
failure to exhaust. See Johnson, 385 F.3d at 517.
Smith presented no evidence in the district court that he
filed grievances relative to his claims that the confiscation of
his religious materials violated his First Amendment and equal
protection rights. Although the magistrate judge failed to
identify these claims as such, they are subject to dismissal
under § 1997e because Smith did not exhaust them. See Johnson,
385 F.3d at 515.
Thus, the district court’s § 1915A dismissal of Smith’s
claim that the defendants conspired to deprive him of his legal
No. 06-40055
-4-
property is affirmed. The district court’s § 1997e dismissal of
Smith’s claims that the defendants, in retaliation for Smith’s
disclosure of their illegal activity, exposed him to second hand
smoke, denied him adequate medical treatment, and violated his
equal protection and First Amendment rights is affirmed. The
district court’s § 1997e dismissal of Smith’s claim that the
defendants conspired to deny him access to the courts, however,
is vacated, and the case is remanded to the district court for
proceedings consistent with this opinion.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.