United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 26, 2007
Charles R. Fulbruge III
Clerk
No. 06-30383
Summary Calendar
MARLIN FONTENOT,
Plaintiff-Appellant,
versus
GLOBAL EXPERTISE IN OUTSOURCING, in its individual
capacity as the private prison contractor; OTIS KENT
ANDREWS; CHARLES SIMON; MELANIE FOWLER; BETTY DUPLECHAIN,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:05-CV-352
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Before JONES, Chief Judge, and KING and DAVIS, Circuit Judges.
PER CURIAM:*
Marlin Fontenot, Louisiana prisoner # 093804, appeals both the
district court’s dismissal of his civil rights complaint pursuant
to 42 U.S.C. § 1997e(a) for failure to exhaust administrative
remedies and the denial of his motion under Federal Rule of Civil
Procedure 59. Fontenot asserts that the prison’s administrative
grievance procedure was not available to him for purposes of
§ 1997e(a) because the prison’s inmate counsel substitutes refused
to help him and he required their assistance due to his physical
*
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this opinion should not be published and is not precedent except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.
and mental disabilities. He contends that he did not find another
inmate willing to help him until after the 90-day deadline had
passed.
We review the dismissal of a 42 U.S.C. § 1983 complaint for
failure to exhaust administrative remedies de novo. Days v.
Johnson, 322 F.3d 863, 866 (5th Cir. 2003). Assuming arguendo that
the administrative process was not available to Fontenot while he
could not find someone to assist him, he is not excused from the
exhaustion requirement because he did not file a grievance once he
found an inmate willing to help him, prior to filing a § 1983 suit.
See Days, 322 F.3d at 867-68. He argues that it would have been
futile to file a grievance at that time because it would have been
untimely. Futility is not an exception to the exhaustion
requirement. See id.
Fontenot also renews his argument that the district court
should have amended its judgment under Federal Rule of Civil
Procedure 59(e) to equitably toll the prescriptive period while he
attempts to exhaust prison remedies. We hold that the statute of
limitations should be equitably tolled during the pendency of the
instant suit and any subsequent state administrative proceeding.
See Clifford v. Gibbs, 298 F.3d 328, 333 (5th Cir. 2002).
The judgment of the district court is AFFIRMED as MODIFIED.
2