IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40234
ROBERT LEE POWE,
Plaintiff-Appellant,
VERSUS
GILBERT L. ENNIS, Sergeant, Beto I; ROBERT AKERS, Corrections
Officer II, Beto I; M. ALLEN, Corrections Officer III, Beto I;
DAVID M. RAYMOND, Corrections Officer III, Beto I,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
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June 16, 1999
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:
Robert Powe appeals the dismissal of his (11th Cir. 1998); Jenkins v. Morton, 148 F.3d
42 U.S.C. § 1983 complaint.1 He contends 257, 259 (3d Cir. 1998); White v. McGinnis,
that the district court erred in dismissing, 131 F.3d 593, 595 (6th Cir. 1997); Garrett v.
without prejudice, his failure-to-protect claim Hawk, 127 F.3d 1263, 1264 (10th Cir. 1997).
and conspiracy claim for failure to exhaust his
administrative remedies pursuant to 42 U.S.C.
§ 1997e. Joining the other circuits that have Section 1997e, as amended by the Prison
explicitly addressed this issue, we proceed by Litigation Reform Act, provides that “[n]o
reviewing the dismissal de novo. See action shall be brought with respect to prison
Alexander v. Hawk, 159 F.3d 1321, 1323 conditions under section 1983 of this title, or
any other Federal law, by a prisoner confined
in any jail, prison, or other correctional facility
1
until such administrative remedies as are
Powe does not challenge the dismissal, available are exhausted.” 42 U.S.C. §
with prejudice, of his disciplinary claim, so that 1997e(a) (West Supp. 1998). The Texas
portion of the judgment is affirmed. His claim that
the magistrate judge is biased is without merit. See Department of Criminal Justice currently
Liteky v. United States, 510 U.S. 540, 555 (1994). provides for a two-step procedure for
presenting administrative grievances. See
Wendell v. Asher, 162 F.3d 887, 891 (5th Cir.
1998) (citing Texas Department of Criminal
J u s t i c e , A d m i n i s t r a t i v e D i r e c ti v e
No. AD-03.-82 (rev.1) (Jan. 31, 1997)).
We have reviewed the record, which
contains Powe’s step 1 and step 2 grievances,
in which he alleged that the defendant officers
had failed to protect him after he told them
that another inmate had threatened him and
that they had tried to cover up their failure to
protect him by issuing a bogus disciplinary
case. Because Powe presented these claims
through the prison grievance system, the
district court erred in dismissing the complaint
in part for failure to exhaust.
The district court held that Powe had failed
to exhaust his administrative remedies as to
these because the prison's response to his step
2 grievance had failed specifically to address
some of his arguments. Powe filed his step 2
grievance on May 12, 1997. The prison
system had forty days to provide its response
to it.2 Powe did not file this suit until
September 30, 1997, well after the due date
for the state's complete response to the step 2
grievance.
A prisoner's administrative remedies are
deemed exhausted when a valid grievance has
been filed and the state's time for responding
thereto has expired.3 Accordingly, we vacate
that portion of the judgment and remand for
further proceedings consistent with this
opinion.
AFFIRMED IN PART; VACATED AND
REMANDED IN PART.
2
See Wendell, 162 F.3d at 891 (setting
forth the Texas Department of Criminal Justice
grievance procedure).
3
See Underwood v. Wilson, 151 F.3d 292,
295 (5th Cir. 1998), cert. denied, 1999 U.S. LEXIS
3500 (May 24, 1999) (No. 98-7852).
2