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Administrative Remedies Exhausted When Response Time Elapses
The court of appeals for the Fifth circuit held that prison administrative remedies are deemed exhausted when the time period for the prison's response elapses, regardless of whether or not the prison has responded.
42 U.S.C. § 1997e requires that prisoners exhaust available administrative remedies before they can file suit in federal court. Robert Powe, a Texas state prisoner, sued prison officials claiming they failed to protect him from assault by another prisoner and then tried to cover up their failure by punishing him on false disciplinary charges. Powe filed a grievance as provided for in Texas Department of Criminal Justice (TDCJ) rules. (The TDCJ grievance procedure is described in detail in Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998)). Long after the 40 days allowed for a response, Powe filed suit even though the prison never responded to his step two grievance.
The district court dismissed the suit under § 1997e, claiming Powe had failed to exhaust his administrative remedies because he filed suit before the prison responded to his grievance. The court of appeals affirmed the dismissal of the disciplinary hearing claim, but vacated and remanded the failure to protect claim.
In a brief ruling, the court relied on Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998) to vacate the district court's ruling. "Because Powe presented these claims through the prison grievance system, the district court erred in dismissing the complaint in part for failure to exhaust."
"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." The case was remanded for further proceedings. See: Powe v. Ennis, 177 F.3d 393 (5th Cir. 1999).
42 U.S.C. § 1997e requires that prisoners exhaust available administrative remedies before they can file suit in federal court. Robert Powe, a Texas state prisoner, sued prison officials claiming they failed to protect him from assault by another prisoner and then tried to cover up their failure by punishing him on false disciplinary charges. Powe filed a grievance as provided for in Texas Department of Criminal Justice (TDCJ) rules. (The TDCJ grievance procedure is described in detail in Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998)). Long after the 40 days allowed for a response, Powe filed suit even though the prison never responded to his step two grievance.
The district court dismissed the suit under § 1997e, claiming Powe had failed to exhaust his administrative remedies because he filed suit before the prison responded to his grievance. The court of appeals affirmed the dismissal of the disciplinary hearing claim, but vacated and remanded the failure to protect claim.
In a brief ruling, the court relied on Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998) to vacate the district court's ruling. "Because Powe presented these claims through the prison grievance system, the district court erred in dismissing the complaint in part for failure to exhaust."
"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." The case was remanded for further proceedings. See: Powe v. Ennis, 177 F.3d 393 (5th Cir. 1999).
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Related legal case
Powe v. Ennis
| Year | 1999 |
|---|---|
| Cite | 177 F.3d 393 (5th Cir. 1999) |
| Level | Court of Appeals |
Powe v. Ennis, 177 F.3d 393 (5th Cir. 06/16/1999)
[1] U.S. Court of Appeals, Fifth Circuit
[2] No. 98-40234
[4] June 16, 1999
[5] ROBERT LEE POWE, PLAINTIFF-APPELLANT,
v.
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.
[6] Before Smith, DeMOSS, and Stewart, Circuit Judges.
[7] The opinion of the court was delivered by: Per Curiam
[8] Appeal from the United States District Court for the Eastern District of Texas
[9] Robert Powe appeals the dismissal of his 42 U.S.C. § 1983 complaint. *fn1 He contends that the district court erred in dismissing, without prejudice, his failure-to-protect claim and conspiracy claim for failure to exhaust his administrative remedies pursuant to 42 U.S.C. § 1997e. Joining the other circuits that have explicitly addressed this issue, we proceed by reviewing the dismissal de novo. See Alexander v. Hawk, 159 F.3d 1321, 1323 (11th Cir. 1998); Jenkins v. Morton, 148 F.3d 257, 259 (3d Cir. 1998); White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997); Garrett v. Hawk, 127 F.3d 1263, 1264 (10th Cir. 1997).
[10] Section 1997e, as amended by the Prison Litigation Reform Act, provides that "[n]o 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. § 1997e(a) (West Supp. 1998). The Texas Department of Criminal Justice currently 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 Justice, Administrative Directive No. AD-03.-82 (rev.1) (Jan. 31, 1997)).
[11] 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.
[12] 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. *fn2 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.
[13] 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. *fn3 Accordingly, we vacate that portion of the judgment and remand for further proceedings consistent with this opinion.
[14] AFFIRMED IN PART; VACATED AND REMANDED IN PART.
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Opinion Footnotes
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[15] *fn1 Powe does not challenge the dismissal, with prejudice, of his disciplinary claim, so that portion of the judgment is affirmed. His claim that the magistrate Judge is biased is without merit. See Liteky v. United States, 510 U.S. 540, 555 (1994).
[16] *fn2 See Wendell, 162 F.3d at 891 (setting forth the Texas Department of Criminal Justice grievance procedure).
[17] *fn3 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).
[1] U.S. Court of Appeals, Fifth Circuit
[2] No. 98-40234
[4] June 16, 1999
[5] ROBERT LEE POWE, PLAINTIFF-APPELLANT,
v.
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.
[6] Before Smith, DeMOSS, and Stewart, Circuit Judges.
[7] The opinion of the court was delivered by: Per Curiam
[8] Appeal from the United States District Court for the Eastern District of Texas
[9] Robert Powe appeals the dismissal of his 42 U.S.C. § 1983 complaint. *fn1 He contends that the district court erred in dismissing, without prejudice, his failure-to-protect claim and conspiracy claim for failure to exhaust his administrative remedies pursuant to 42 U.S.C. § 1997e. Joining the other circuits that have explicitly addressed this issue, we proceed by reviewing the dismissal de novo. See Alexander v. Hawk, 159 F.3d 1321, 1323 (11th Cir. 1998); Jenkins v. Morton, 148 F.3d 257, 259 (3d Cir. 1998); White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997); Garrett v. Hawk, 127 F.3d 1263, 1264 (10th Cir. 1997).
[10] Section 1997e, as amended by the Prison Litigation Reform Act, provides that "[n]o 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. § 1997e(a) (West Supp. 1998). The Texas Department of Criminal Justice currently 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 Justice, Administrative Directive No. AD-03.-82 (rev.1) (Jan. 31, 1997)).
[11] 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.
[12] 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. *fn2 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.
[13] 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. *fn3 Accordingly, we vacate that portion of the judgment and remand for further proceedings consistent with this opinion.
[14] AFFIRMED IN PART; VACATED AND REMANDED IN PART.
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Opinion Footnotes
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[15] *fn1 Powe does not challenge the dismissal, with prejudice, of his disciplinary claim, so that portion of the judgment is affirmed. His claim that the magistrate Judge is biased is without merit. See Liteky v. United States, 510 U.S. 540, 555 (1994).
[16] *fn2 See Wendell, 162 F.3d at 891 (setting forth the Texas Department of Criminal Justice grievance procedure).
[17] *fn3 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).