UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-40938
RUSSELL WILLIAM WHITLEY,
Plaintiff-Appellant,
VERSUS
JOHN HUNT, Unit Manager at FCI Texarkana Texas in
his individual capacity; LEJEAN MOORE, Case Manager
at FCI Texarkana Texas; KENNETH WILLIAMS, Counselor at
FCI Texarkana Texas in his individual capacity;
BUREAU OF PRISONS, Bureau of Prisons in Washington D.C.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
October 23, 1998
Before WIENER, BARKSDALE, and DeMOSS, Circuit Judges.
DeMOSS Circuit Judge:
Federal prisoner Russell William Whitley appeals the district
court’s dismissal of his claims challenging the conditions of his
confinement in the federal correctional facility at Texarkana,
Texas. Whitley is appearing pro se and in forma pauperis. We
affirm in part, reverse in part, and remand for further proceedings
consistent with this opinion.
BACKGROUND
Russell William Whitley is serving a sentence of thirty months
at the federal correctional facility in Texarkana, Texas for drug
offenses involving 170 kilograms of cocaine and 1,660 grams of
heroin. In May 1997, Whitley filed an action against the Bureau of
Prisons and three prison officials, (1) John Hunt, a unit manager,
(2) Lejean Moore, a case manager, and (3) Kenneth Williams, a
counselor. Whitley’s original complaint alleges (1) that the
defendants endangered his current and future health by forcing
Whitley, a non-smoker, to sleep in a smoking dorm for thirteen
weeks, in violation of the Eighth Amendment, (2) that the
defendants discriminated against him because of his race and
because he is from St. Louis, and (3) that the defendants willfully
changed his security status from minimum security to low security
on the basis of inaccurate information in his presentence report,
in violation of the Privacy Act, 5 U.S.C.A. § 552a. Whitley also
claims that the defendants have retaliated against him for filing
administrative grievances. Whitley’s original complaint requests
that the Bureau of Prisons pay $1,000,000 in monetary damages and
that he be provided future medical care. Whitley’s complaint also
requests $100,000 from each of the named defendants and that the
named defendants be terminated from their positions with the Bureau
2
of Prisons.
The district court referred Whitley’s case to a magistrate
judge. The magistrate judge prepared a memorandum recommending
that Whitley’s claims be dismissed for failure to exhaust
administrative remedies. Whitley filed objections. In his
objections, Whitley sought to amend his complaint to seek monetary
damages only. Whitley clarified that he was no longer requesting
that the defendants be terminated and no longer requesting future
medical care. Rather, Whitley amended his complaint to request
“monetary damages for medical care” in the amount of $1,000,000
from the Bureau of Prisons and $100,000 from each of the individual
defendants. Whitley argued that he was not required to pursue
administrative remedies prior to bringing suit for monetary
damages. Whitley also argued that some of his grievances had been
rejected and that further filings would be futile.
The district court overruled Whitley’s objections and entered
an order dismissing Whitley’s claims. Whitley’s denial of medical
care and discrimination claims were dismissed for non-exhaustion
and without prejudice to refiling once administrative remedies were
exhausted. Whitley’s classification claim was dismissed with
prejudice as frivolous pursuant to 28 U.S.C.A. § 1915(e)(2)(B)(i).
After the district court entered final judgment, Whitley filed a
timely notice that he intended to appeal the district court’s
judgment.
3
WHITLEY’S DENIAL OF MEDICAL CARE CLAIMS
Whitley claims that the individual defendants and the Bureau
or Prisons demonstrated a deliberate indifference to his serious
medical needs, in violation of the Eighth Amendment. Specifically,
Whitley claims that he became seriously ill after he was
unwillingly incarcerated in a smoking environment for thirteen
weeks. The district court dismissed Whitley’s claim against the
individual defendants and Whitley’s claim against the Bureau of
Prisons for non-exhaustion.
I.
The district court’s dismissal of Whitley’s denial of medical
care claims for non-exhaustion was based in part upon its view that
Whitley was seeking both injunctive and monetary relief. On
appeal, Whitley claims that he was not required to pursue
administrative remedies prior to filing suit because he was seeking
solely monetary relief. We begin, therefore, with an analysis of
Whitley’s pleadings.
Whitley‘s original complaint clearly requests both monetary
and injunctive relief. In his written objections to the magistrate
judge’s recommendation, however, Whitley sought to amend his
complaint by narrowing his claims to seek only monetary relief.
The district court’s order gave no effect to Whitley’s request.
4
Whitley was entitled to amend his pleading once as a matter of
course, and without leave of court, at any time prior to the time
that the defendants answered the lawsuit. See FED. R. CIV. P. 15(a)
(providing that a “party may amend the party’s pleading once as a
matter of course at any time before a responsive pleading is
served”). Although Whitley failed to present the district court
with a properly styled amended complaint, his pro se attempt to
narrow his pleadings was timely and should have been given effect
as a matter of course. See, e.g., Horton v. Cockrell, 70 F.3d 397,
402 (5th Cir. 1995). We therefore construe Whitley’s pro se
complaint as a request for exclusively monetary relief.
II.
Whitley characterizes his denial of medical care claims as
constitutional claims for violation of the Eighth Amendment. The
district court’s order dismissing Whitley’s denial of medical care
claims fails to distinguish between Whitley’s claim against the
individual defendants and Whitley’s claim against the Bureau of
Prisons. To the extent Whitley is alleging denial of medical care
against the individual prison officials, his claim is in the nature
of a Bivens claim.1 “[A] Bivens claim is available only against
1
In Bivens v. Six Unknown Named Federal Narcotics Agents,
91 S. Ct. 1999 (1971), the Supreme Court recognized that certain
circumstances may give rise to a private cause of action against
federal officials that is comparable to the statutory cause of
action permitted against state officials by 42 U.S.C.A. § 1983.
5
government officers in their individual capacities.”
Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1294 n.12 (5th Cir. 1994).
Bivens claims may not, however, be brought against agencies of the
federal government. F.D.I.C. v. Meyer, 114 S. Ct. 996, 1006
(1994). Whitley does not directly identify the basis of his
denial of medical care claim against the Bureau of Prisons.
Construing Whitley’s pleadings liberally, we determine that
Whitley’s denial of medical care claim against the Bureau of
Prisons would be actionable, if at all, only as a claim under the
Federal Tort Claims Act, 28 U.S.C.A. §§ 2671-2680. See Shah v.
Quinlin, 901 F.2d 1241, 1244 (5th Cir. 1990); see also Garrett v.
Hawk, 127 F.3d 1263, 1266 (10th Cir. 1997).
III.
Whitley argues that he was not required to pursue
administrative remedies prior to filing his Bivens claim against
the individual prison officials because he is seeking exclusively
monetary relief, citing McCarthy v. Madigan, 112 S. Ct. 1081
(1992).
Title 42 U.S.C.A. § 1997e, which now governs a federal
prisoner’s obligation to pursue administrative remedies prior to
bringing a Bivens action against federal officials, was
See Zuspann v. Brown, 60 F.3d 1156, 1157 n.2 (5th Cir. 1995).
6
substantially amended by passage of the Prison Litigation Reform
Act (PLRA), Pub. L. No. 104-134, § 803, 110 Stat. 1321, which
became effective April 26, 1996. Those amendments are applicable
to Whitley’s claims, which were filed in May 1997. Prior to the
PLRA, § 1997e provided:
(1) Subject to the provisions of paragraph (2), in
any action brought pursuant to section 1983 of this
title by an adult convicted of a crime confined in
any jail, prison, or other correctional facility,
the court shall, if the court believes that such a
requirement would be appropriate and in the
interests of justice, continue such case for a
period of not to exceed 180 days in order to
require exhaustion of such plain, speedy, and
effective administrative remedies as are available.
(2) The exhaustion of administrative remedies may
not be required unless the Attorney General has
verified or the court has determined that such
administrative remedies are in substantial
compliance with the minimum acceptable standards
promulgated under subsection (b) of this section or
are otherwise fair and effective.
42 U.S.C.A. § 1997e (1994). Thus, § 1997e imposed a limited and
discretionary exhaustion requirement applicable to § 1983 claims
brought by state prisoners only. Although the pre-PLRA version of
§ 1997e did not require exhaustion by federal prisoners, many
courts (including this one) had nonetheless created a comparable
exhaustion requirement for actions brought by federal prisoners
challenging the conditions of their confinement. See, e.g., Arvie
v. Stalder, 53 F.3d 702, 704-05 (5th Cir. 1995).
The Supreme Court construed the pre-PLRA version of § 1997e in
7
McCarthy v. Madigan, 112 S. Ct. 1081 (1992). McCarthy held that a
federal prisoner seeking solely monetary relief need not pursue
administrative remedies prior to filing a Bivens suit against
prison authorities. McCarthy was premised in large part upon the
dual facts (1) that Congress had not required exhaustion by federal
prisoners in § 1997e, and (2) that the Bureau of Prisons did not
afford any administrative remedies that would permit the recovery
of monetary damages. 112 S. Ct. at 1089-92.
Section 1997e, as amended by the PLRA, now provides:
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.
42 U.S.C.A. § 1997e (Supp. 1998). Having expanded the exhaustion
requirement to include actions brought under “any other Federal
law,” Congress now plainly requires federal prisoners to exhaust
available administrative remedies prior to bringing Bivens claims.
See, e.g., Garrett, 127 F.3d at 1265-66 & n.2; Alexander S. v.
Boyd, 113 F.3d 1373, 1380 (4th Cir. 1997), cert. denied, 118 S. Ct.
880 (1998). Therefore, that part of McCarthy which relied upon
Congress’ failure to expressly require exhaustion by federal
prisoners no longer provides a viable justification for excusing a
federal prisoner’s failure to pursue administrative remedies. The
question remains, however, whether Congress intended to require a
8
federal prisoner who is seeking exclusively monetary damages to
pursue administrative remedies when, and if, there are no
administrative remedies that would permit recovery of monetary
damages.
This Circuit has not addressed that question. In Garrett v.
Hawk, 127 F.3d 1263 (10th Cir. 1997), the Tenth Circuit held that
§ 1997e does not require a federal prisoner seeking exclusively
monetary relief to pursue administrative remedies prior to filing
a Bivens claim against prison officials. The Court reasoned that
McCarthy’s holding that Congress did not intend to require
exhaustion of unavailable remedies survived in the plain language
of the amended statute. 127 F.3d at 1266; see also 42 U.S.C.A. §
1997e (Supp. 1998) (“No action shall be brought . . . until such
administrative remedies as are available are exhausted.”)
(emphasis added). Noting that Congress had not seen fit to enact
administrative remedies that would, or even could, provide monetary
relief to prisoners pressing Bivens claims, the Court held that
§ 1997e could not be construed to require the exhaustion of non-
existent remedies. Garrett, 127 F.3d at 1267; see also McCarthy,
112 S. Ct. at 1092 (“Congress, of course, is free to design or
require an appropriate administrative procedure for a prisoner to
exhaust his claim for money damages."). Although the Tenth Circuit
is the only Circuit to have directly addressed the issue, the Ninth
Circuit likewise adheres to the rule that § 1997e does not require
9
that a federal prisoner seeking only monetary relief pursue
administrative remedies prior to filing a Bivens claim. See,
e.g., Lunsford v. Jumao-As, No. 96-56503, 1998 WL 683306 (9th Cir.
Oct. 5, 1998).2
The plain language of § 1997e requires only the exhaustion of
“available” administrative remedies. We infer from that term that
Congress did not intend to require the exhaustion of unavailable
remedies. Given that the statute does not specify when an
administrative remedy will be considered “available,” we must rely
upon traditional methods of statutory construction to give meaning
to the term.
We recently considered whether an administrative remedy
remained “available” within the meaning of § 1997e. In Underwood
v. Wilson, 151 F.3d 292 (5th Cir. 1998), the Court examined whether
an administrative remedy was still “available,” or instead should
be deemed “exhausted,” when the prisoner had filed the appropriate
grievance but prison officials had failed to respond within the
time period allowed by the regulations for a response. 151 F.3d at
295. The Court held that a remedy is “available” when it can be
2
Among those federal district courts that have addressed
the issue, there appears to be substantial disagreement. Some
district courts rely upon the plain language of the statute, which
only requires exhaustion of “available” remedies. Other district
courts have concluded that making the exhaustion requirement
contingent upon the type of relief being sought is inconsistent
with Congress’ purpose in enacting the PLRA. See Funches v. Reish,
No. 97-7611, 1998 WL 695904 at * 7 (S.D.N.Y. Oct. 5, 1998)
(collecting cases).
10
availed “for the accomplishment of a purpose” or “is accessible or
may be obtained.” Id. (quoting WEBSTER’S NEW INTERNATIONAL DICTIONARY 150
(3d ed. 1981)). At the time Whitley filed his complaint, there
were no administrative remedies capable of providing monetary
recovery against the individual defendants. Had he submitted a
grievance seeking exclusively monetary relief, it is likely that
the grievance would have been returned as improper subject matter
for administrative review. See Garrett, 127 F.3d at 1266; see also
28 C.F.R. § 542.12(b). We conclude that there were no “available”
or accessible administrative remedies that would have accomplished
the purpose of affording Whitley monetary relief.
Although decided under the pre-PLRA version of § 1997e, we are
also guided by this Court’s holding in Marsh v. Jones, 53 F.3d 707
(5th Cir. 1995), that § 1997e does not require a state prisoner
seeking exclusively monetary relief to pursue administrative
remedies prior to filing suit under § 1983. Id. at 710. As we
said in that case, “[t]he import of McCarthy is clear: A district
court should not require exhaustion under section 1997e if the
prisoner seeks only monetary damages and the prison grievance
system does not afford such a remedy.” Id. We find nothing in the
amended language of § 1997e that would undercut the general lessons
drawn from McCarthy in Marsh. We likewise leave undisturbed this
Court’s pre-PLRA holding in Arvie v. Stalder, 53 F.3d 702 (5th Cir.
1995), that a state prisoner’s mixed petition for both monetary and
11
injunctive relief is subject to § 1997e’s exhaustion requirement.
We join the Ninth and Tenth Circuits in adopting the rule that
federal prisoners pressing Bivens claims against federal officials
need not pursue prison remedies when they are seeking exclusively
monetary relief, and there are no prison remedies capable of
affording such relief. We note, as did the Tenth Circuit in
Garrett and the Supreme Court in McCarthy, that there is nothing to
prevent Congress, and perhaps even the Bureau of Prisons,3 from
enacting regulations that would permit the recovery of monetary
relief from individual prison officials. McCarthy, 112 S. Ct. at
1091-92; Garrett, 127 F.3d at 1267. If such remedies were
available, § 1997e would require exhaustion of those remedies prior
to suit. McCarthy, 112 S. Ct. at 1091-92; Garrett, 127 F.3d at
1267. Absent such remedies, however, we decline to interpret
§ 1997e in a manner that requires exhaustion of unavailable
remedies.
3
McCarthy reflects that whether the Bureau of Prisons has
authority, absent congressional action, to enact regulations
permitting monetary settlement of a Bivens claim is an open
question. See 112 S. Ct. at 1091 n.6 (“Nothing in the record
indicates that this authority has ever been exercised to recompense
a prisoner with a Bivens claim.”); id. at 1092 (“Even without
further action by Congress, we do not foreclose the possibility
that the Bureau itself may adopt an appropriate administrative
procedure consistent with congressional intent.”).
12
Given that Whitley has narrowed his complaint to seek
exclusively monetary relief, he was not required to pursue
administrative remedies prior to filing suit, and the district
court’s dismissal of his Bivens claim for denial of medical care
against the individual defendants was error.
IV.
Neither is the district court’s dismissal of Whitley’s denial
of medical care claim against the individual defendants harmless
error. The district court entered an alternative holding that
Whitley’s Eighth Amendment claim for denial of medical care, even
if exhausted, was frivolous within the meaning of 28 U.S.C.A.
§ 1915(e)(2)(B)(i). We disagree. Whitley’s Eighth Amendment claim
has substantial support in the law. See, e.g., Helling v.
McKinney, 113 S. Ct. 2475 (1993) (Eighth Amendment claim that
prison officials were deliberately indifferent to serious medical
needs can be based upon present and future harm from exposure to
environmental tobacco smoke); Rochon v. City of Angola, 122 F.3d
319 (5th Cir. 1997) (claim for exposure to environmental tobacco
smoke is sufficiently well established on the basis of Helling to
defeat an official’s assertion of entitlement on the basis of the
pleadings to qualified immunity). Whitley’s claim that he was
unwillingly exposed to environmental tobacco smoke also finds
substantial factual support in the record. Whitley tendered a copy
13
of the prison’s policy, which provides that “[t]o the maximum
extent practicable nonsmoking inmates shall be housed in nonsmoking
living quarters,” and that “[w]hen feasible, separate dormitories
shall be provided for nonsmoking inmates, desiring such housing.”
Another prison document provided to Whitley spells out his rights
to medical care. That document states “[y]ou have the right to a
safe, clean and healthy environment, including smoke free living
areas.”
Whitley identified himself as a nonsmoker and requested
nonsmoking living quarters when he was processed into the prison in
August 1996. That same month Whitley formally requested a transfer
to a nonsmoking unit, stating that the smoke was making him ill.
In September 1996, the prison doctor issued a medical report that
Whitley needed nonsmoking quarters. In other papers filed with the
prison or prison authorities, Whitley claims to have suffered from
bronchitis and a facial rash associated with the smoking
environment.
We need not decide, at this stage of the litigation, whether
Whitley will ultimately be able to establish an Eighth Amendment
violation. The defendants have not even answered the suit. It is
sufficient to say that the claim merits further development and
dismissal as frivolous would be improper. Horton, 70 F.3d at 401.
For the foregoing reasons, the district court’s dismissal of
Whitley’s Eighth Amendment claim that prison officials demonstrated
14
a deliberate indifference to his medical needs by exposing him to
environmental tobacco smoke is reversed, and the cause remanded for
further proceedings consistent with this opinion.
V.
Whitley’s obligation to pursue administrative remedies prior
to filing his Federal Tort Claims Act (FTCA) claim against the
Bureau of Prisons is likewise governed by federal statute. See 28
U.S.C.A. § 2675(a); see also id. § 2673. The federal regulations
contain separate regulatory provisions providing an administrative
procedure and administrative remedies for FTCA claims. See 28
C.F.R. §§ 0.95-0.97, 0.172, 14.1-14.11; see also Garrett, 127 F.3d
at 1266. Those regulations grant the Director of the Bureau of
Prisons limited authority to settle prisoner claims brought
pursuant to the FTCA. See 28 C.F.R. § 0.172; see also Garrett, 127
F.3d at 1266. Even though those remedies would not have completely
answered Whitley’s initial demand for damages, Whitley was required
to pursue and failed to pursue available remedies that could have
afforded him substantial monetary recovery.
The district court’s dismissal of Whitley’s FTCA claim for
denial of medical care against the Bureau of Prisons for non-
exhaustion was proper and is affirmed.
WHITLEY’S DISCRIMINATION CLAIMS
15
Whitley claims that individual prison officials and the Bureau
of Prisons discriminated against him on the basis of his race and
on the basis that he is from St. Louis. The district court
dismissed these claims for non-exhaustion.
Our analysis of Whitley’s obligation to pursue administrative
remedies with respect to his denial of medical care claim applies
with equal force in this context. Whitley is seeking exclusively
monetary relief. The Bureau of Prisons has not enacted
administrative remedies capable of providing Whitley with a
monetary recovery against the individual officers. Section 1997e
does not require Whitley to pursue unavailable remedies.
Therefore, the district court’s dismissal of Whitley’s
discrimination claim against the individual officials for non-
exhaustion was error.
With respect to Whitley’s discrimination claim, however, we
conclude that any such error was harmless. Whitley’s complaint
alleges that he suffered discrimination on the basis of race and
place of origin. Dismissal as frivolous is appropriate where a
prisoner’s claim lacks any factual or legal basis in the law.
Horton, 70 F.3d at 400. Whitley’s claim of racial and locality
discrimination is supported only by his claim that defendant Hunt
made a comment at some undisclosed time and in some undisclosed
context about the way “you people” talk. Whitley never even
specifies his race in his pleadings, and does not articulate why
16
discrimination on the basis that he is from St. Louis would be
unlawful. Whitley’s discrimination claims, which the district
court characterized as “conclusory,” are without factual support
and legal support. For that reason, the district court’s dismissal
of Whitley’s discrimination claim against the individual defendants
may be affirmed on the basis that such claim is frivolous within
the meaning of 28 U.S.C.A. § 1915(e)(2)(B)(i).
With respect to his discrimination claim against the Bureau of
Prisons, Whitley was obligated to exhaust administrative remedies.
Whitley failed to exhaust those remedies. Accordingly, the
district court’s dismissal of Whitley’s discrimination claim
against the Bureau of Prisons was likewise proper, either for non-
exhaustion or because such claim is frivolous.
The district court’s dismissal of Whitley’s discrimination
claim against the Bureau of Prisons is affirmed.
WHITLEY’S CLASSIFICATION CLAIM
Whitley claims that prison officials intentionally relied upon
inaccurate records to raise his security classification, in
violation of the Privacy Act, 5 U.S.C.A. § 552a. Whitley has
likewise lodged this claim against both the individual defendants
and the Bureau of Prisons. The district court dismissed this claim
as frivolous. Having concluded a de novo review of the record, we
agree.
17
In August 1996, when Whitley arrived at the Texarkana
facility, his offense was characterized as “high severity” and his
security classification was “minimum.” Prison authorities later
changed the characterization of Whitley’s offense from “high
severity” to “greatest severity” and his security classification
from “minimum” to “low.” Whitley’s status was changed because
Whitley’s presentence report states that Whitley’s offense involved
a firearm. In changing Whitley’s classification, the Bureau of
Prisons relied upon Bureau of Prisons Program Statements defining
Whitley’s offense as a crime of violence requiring a “greatest
severity” classification. See Federal Bureau of Prisons, United
States Dep’t of Justice, Program Statement No. 5100.06, Security
Designation and Custody Classification Manual; Program Statement
No. 5162.02, Definition of Term, "Crimes of Violence."
Whitley was convicted of conspiracy to distribute and
possession with intent to distribute cocaine, in violation of 18
U.S.C.A. §§ 841(a)(1) and 846. The record reflects that Whitley
stipulated to the sentencing court that guns were present with the
drugs during the offense. In addition, Whitley concedes that his
PSR accurately reports that several firearms were seized from his
home. Whitley nonetheless claims that there is a misunderstanding
because he was in lawful possession of the firearms. Whitley’s
classification claim is premised upon the fact the Bureau of
Prisons officials refused to contact the probation officer or the
18
federal district court to clarify that he was in lawful, rather
than unlawful, possession of firearms.
Inmates have no protectable property or liberty interest in
custodial classification. Wilson v. Budney, 976 F.2d 957, 958 (5th
Cir. 1992); Moody v. Baker, 857 F.2d 256, 257-58 (5th Cir. 1988).
The classification of prisoners is a matter within the discretion
of prison officials. McCord v. Maggio, 910 F.2d 1248, 1250 (5th
Cir. 1990). Absent an abuse of discretion, federal courts are
loathe to interfere with custodial classifications established by
prison officials. See Jackson v. Cain, 864 F.2d 1235 (5th Cir.
1989).
Whitley’s Privacy Act claim requires proof that the defendants
“willfully or intentionally” failed to correct inaccurate
information about his sentence, that was erroneously relied upon to
establish his security classification. See 5 U.S.C.A.
§ 552a(g)(1)(C), (g)(4). Whitley is essentially claiming that his
sentence itself was incorrectly entered. That is an issue that
should have been resolved on direct appeal from his criminal
conviction.
The district court concluded, based upon these principles of
law, that there was no factual or legal basis for Whitley’s claim
that prison officials abused their discretion by relying upon the
sentence imposed against Whitley to determine his classification.
We review that determination for an abuse of discretion, Denton v.
19
Hernandez, 112 S. Ct. 1728, 1734 (1992), and find none.
The district court’s dismissal of Whitley’s classification
claim as frivolous is affirmed.
WHITLEY’S RETALIATION CLAIMS
Whitley also alleges that the defendants have engaged in
miscellaneous other acts of retaliation because he complained about
being placed in a smoking environment. Whitley’s claims in this
regard are not well organized but involve a multitude of relatively
minor offenses that would not give rise to a cognizable cause of
action against either the individual defendants or the Bureau of
Prisons. For example, Whitley claims he was denied the top bunk in
his cell when his roommate moved out. Whitley also complains that
prison officials did not allow another inmate to accompany him when
he reviewed his files.
Since the district court entered final judgment, Whitley has
filed additional pleadings and letters. Among those filings is
Whitley’s motion to supplement his pleadings to include additional
slights by prison officials. The district court has not entered
any disposition of that request and our records do not reflect that
any motion has been filed to supplement the record in this Court.
Therefore, it does not appear that Whitley’s supplemental pleadings
are properly before this Court. To the extent Whitley registered
complaints of retaliation prior to the district court’s judgment,
20
those claims were dismissed as frivolous, and that disposition is
affirmed. To the extent he has registered additional complaints
since that time, the district court has not addressed the issues,
and those claims are not properly before this Court.
We affirm the district court’s dismissal of Whitley’s
retaliation claims as frivolous.
CONCLUSION
The district court’s dismissal of Whitley’s denial of medical
care claim against individual defendants Hunt, Moore, and Williams
for non-exhaustion is REVERSED and the cause REMANDED for further
proceedings consistent with this opinion. The district court’s
dismissal of Whitley’s denial of medical care claim against the
Bureau of Prisons for non-exhaustion is AFFIRMED.
The district court’s dismissal of Whitley’s discrimination
claims against all defendants is AFFIRMED. The district court’s
dismissal of Whitley’s classification claims against all defendants
is AFFIRMED. The district court’s dismissal of Whitley’s
retaliation claims against all defendants is AFFIRMED.
g:\opin\97-40938.opn 21