Case: 09-30842 Document: 00511075522 Page: 1 Date Filed: 04/09/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 9, 2010
No. 09-30842
Summary Calendar Lyle W. Cayce
Clerk
MANUEL PLAISANCE,
Plaintiff-Appellant,
v.
LOUISIANA STATE PENITENTIARY; WARDEN BURL CAIN, LOUISIANA STATE
PENITENTIARY, in His Individually and Official Capacities as Warden of Angola;
WARDEN/DEPUTY DARREL VANNOY, in His Individual and Official Capacities as
Deputy Warden of Angola Prison; WARDEN BLAINE LACHNEY, in His Individual
and Official Capacities as Warden at Camp-C Unit, Angola Prison; COLONEL
UNKNOWN PORET, In His Individual and Official Capacities as Colonel at Camp-C
Unit, Angola Prison; SERGEANT ROBERT HAYES, in His Individual and Official
Capacities as Sergeant at Camp-C Unit, Angola Prison; SERGEANT J THOMAS, in
His Individual, and Official Capacities as Sergeant at Camp-C Unit, Angola Prison;
COLONEL UNKNOWN SHARP, In His Individually and Official Capacities as
Colonel, at Camp-D Unit, Angola Prison; MAJOR UNKNOWN RICHARDSON, In His
Official Capacities as Major at Camp -D Unit, Angola Prison; SERGEANT UNKNOWN
BATISTE, In His Individual and Official Capacities as Sergeant at Camp-D Unit,
Angola Prison; COLONEL KENNETH DUPUIS, In His Individual and Official
Capacity as Colonel at Camp-D Unit, Angola Prison; MAJOR UNKNOWN TUBBS, In
His Individual and Official Capacities as Major at Camp-D Unit, Angola Prison;
SERGEANT UNKNOWN DAVIS, In His Individual and Official Capacities as
Sergeant at Camp-D Unit, Angola Prison; SERGEANT UNKNOWN GRIFFIN, In His
Individual and Official Capacities as Sergeant at Camp-D Unit, Angola Prison;
SERGEANT UNKNOWN WILSON, In His Individual and Official Capacities as
Sergeant at Camp-D Unit, Angola Prison; SERGEANT C. MAYBERRY, In His
Individual and Official Capacities as Sergeant at Camp-D Unit, Angola Prison; TRISH
FOSTER, in Her Individual and Official Capacities as Warden’s Designee at Angola
Prison; WARDEN UNKNOWN LAMARTINERE, In His Individual and Official
Capacities as Warden at Camp-D Unit, Angola Prison; LARRY JACKSON, Sergeant;
UNKNOWN GROOM, Sergeant; K HENYARD, Major; UNKNOWN AMOND, Captain;
UNKNOWN TURNER, Lieutenant,
Defendants-Appellees.
Case: 09-30842 Document: 00511075522 Page: 2 Date Filed: 04/09/2010
No. 09-30842
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:08-CV-497
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Manuel Plaisance, Louisiana prisoner # 196480, proceeding pro se and in
forma pauperis (IFP), filed a complaint in the district court arguing that 23
prison officials retaliated against him for filing an administrative grievance.
The district court dismissed Plaisance’s complaint for failure to exhaust
administrative remedies pursuant to 42 U.S.C. § 1997e. Plaisance now moves,
pursuant to Baugh v. Taylor, 117 F.3d 197 (5th Cir. 1997), for leave to proceed
IFP following the district court’s order denying IFP and certifying that his
appeal is not taken in good faith.
Louisiana provides a two-step administrative remedy procedure for
inmates, which they must use before filing suit in district court. La. Admin.
Code tit. 22, pt. 1, § 325(A). Plaisance does not dispute that he failed to file a
second-step grievance, but he argues that he did not do so because he was
unaware that he was required to complete both steps of the process before filing
suit. Plaisance’s ignorance of the law, however, does not relieve him of his
obligation to comply with procedural requirements. See Fisher v. Johnson, 174
F.3d 710, 714 (5th Cir. 1999) (“[I]gnorance of the law, even for an incarcerated
pro se petitioner, generally does not excuse prompt filing.” (footnote omitted)).
The Supreme Court has emphasized that the exhaustion required under § 1997e
is “proper exhaustion” and that this standard is not met “by filing an untimely
*
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.
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Case: 09-30842 Document: 00511075522 Page: 3 Date Filed: 04/09/2010
No. 09-30842
or otherwise procedurally defective administrative grievance or appeal.”
Woodford v. Ngo, 548 U.S. 81, 83-84 (2006) (“We hold that the proper exhaustion
of administrative remedies is necessary.”).
Plaisance also argues that the district court erred in dismissing his
complaint with prejudice. This issue “involves legal points arguable on their
merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th
Cir. 1983) (internal quotation marks and citation omitted). Because Plaisance’s
appeal is not entirely frivolous, Plaisance is entitled to proceed IFP on appeal,
and his motion for IFP is granted. We may, however, address the merits of
Plaisance’s claims at the same time as resolving the IFP issue if it is expedient
to do so. See Baugh, 117 F.3d at 201-02 (“We are mindful that occasionally we
have blurred the distinction between motions to proceed IFP and appeals on the
merits. . . . Legitimate values, such as concerns for judicial economy and
prudence, justified the melding of the decisions.” (footnote omitted)).
Plaisance argues that the district court should have dismissed his
complaint without prejudice to allow him to exhaust his administrative
remedies. We agree. See Wright v. Hollingsworth, 260 F.3d 357, 359 (5th Cir.
2001). Accordingly, the judgment is affirmed as modified to reflect a dismissal
without prejudice of Plaisance’s complaint.
IFP GRANTED; AFFIRMED AS MODIFIED.
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