IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-60063
Summary Calendar
FREDERICK BELL,
Plaintiff-Appellant,
versus
WESTON BIRDSONG; JIMMY D. BECK; HOMER DALE TRUSSELL;
CHRISTOPHER C. HANKINS; CECIL SHELTON; FRED CARVER;
KIRK FORDICE; EDDIE M. LUCAS; EDWARD HARGETT,
SUPERINTENDENT, MISSISSIPPI STATE PENITENTIARY;
MISSISSIPPI DEPARTMENT OF CORRECTIONS; ROGER COOK;
J.J. STREETER,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Mississippi
(4:94-CV-290-S-0)
July 26, 1996
Before GARWOOD, WIENER and PARKER, Circuit Judges.*
PER CURIAM:
Plaintiff-appellant Frederick Bell (Bell), a prisoner in the
Mississippi Department of Corrections (MDOC), proceeding pro se and
in forma pauperis, filed this civil rights suit alleging that his
living conditions at the MDOC amount to cruel and unusual
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
punishment. On June 14, 1995, a magistrate judge ordered that Bell
“in good faith . . . attempt to exhaust” his available prison
administrative remedies within the next 90 days and obtain a
certificate from the prison Administrative Remedy Program (ARP)
stating that he had exhausted his administrative remedies or that
within 150 days he file a statement that he had attempted to obtain
such a certificate, but had not been furnished with one. The order
provided that, if Bell did not “reasonably and in good faith
attempt to exhaust his administrative remedies,” his suit would be
dismissed with prejudice.
Bell filed a statement with the court within 90 days of the
order indicating that he had submitted a copy of the court’s order
and a copy of his complaint to the prison legal claims
administrator requesting redress of his grievances, but that he had
not received a response. He further stated that “under the present
operation of the ARP Program,” he was unable to obtain a
certificate of completion. He requested the court’s advice as to
what to do next.
Nothing further transpired until on December 11, 1995, the
district court, sua sponte, determined that more than 150 days had
passed and that Bell had failed to comply with the court’s order.
The court dismissed Bell’s suit without prejudice, pursuant to Fed.
R. Civ. P. 41(b), for failure to comply with an order of the court
and for failure to prosecute. The court’s order does not indicate
that the court had read or considered Bell’s response, and stated
that its earlier order had required Bell “to exhaust the available
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state remedies” and file a certificate showing that he “ha[d]
exhausted the administrative remedies.”
District courts have discretion to require an inmate to
exhaust his administrative remedies before entertaining a suit in
federal court. 42 U.S.C. § 1997e(a)(1); Rocky v. Vittorie, 813
F.2d 734, 736 (5th Cir. 1987). Prisoners ordered to exhaust
administrative remedies must do so even if they perceive the prison
grievance system to be inadequate. See Marsh v. Jones, 53 F.3d
707, 710 (5th Cir. 1995).
Before dismissing a civil rights suit for failure to exhaust,
however, the district court should consider whether the prisoner
“reasonably and in good faith pursued his administrative remedies.”
Id. Whether the district court in the instant case gave such
consideration to Bell is unclear inasmuch as the court does not
acknowledge in its order of dismissal Bell’s statement that he
attempted to exhaust his administrative remedies.
Bell’s statement to the court indicated that he submitted his
complaint to the legal claims adjudicator at the prison within one
week of the court’s order. In Rocky, the court noted that the
prisoner in that case, like Bell, at least initially promptly
attempted to secure relief from the prison authorities. Rocky, 813
F.2d at 736. The Rocky court remanded the case and instructed the
district court to give the prisoner the opportunity to present
evidence in support of his contention that he had made a good faith
attempt to exhaust his administrative remedies. The same result
should obtain here.
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Following Rocky, we vacate the district court’s dismissal
order and remand the cause in order to allow Bell the opportunity
to make a showing to the district court in support of his
contention that he had reasonably and in good faith attempted to
exhaust his administrative remedies as required by the magistrate
judge’s order.
VACATED and REMANDED
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