Wilson v. Boise

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 00-30803 _______________

JERROD A. WILSON,

Plaintiff-Appellant,

VERSUS

MARIE BOISE; BURL CAIN; RICHARD L. STALDER,

Defendants-Appellees.

_________________________

Appeal from the United States District Court for the Middle District of Louisiana _________________________

March 30, 2001

Before REAVLEY, SMITH, and DeMOSS, interfered with his mail in violation of his Circuit Judges. constitutional rights. The magistrate judge dismissed one claim of interference and the JERRY E. SMITH, Circuit Judge:* retaliation claim for failure to exhaust admin- istrative remedies. It dismissed the Jerrod Wilson, a Louisiana prisoner, remaining interference claim as frivolous. appeals a judgment of dismissal of his claims We affirm on a different ground. against prison officials. He alleges that they I. Wilson sued Mailroom Supervisor Marie * Boise, Warden Burl Cain, and Secretary Pursuant to 5TH CIR. R. 47.5, the court has Richard Stadler (collectively “prison determined that this opinion should not be officials”) for violation of his constitutional published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. rights under 42 U.S.C. § 1983. Wilson 47.5.4. alleged that Boise violated his rights by

confiscating his mail addressed to an Amendment right to counsel, his Fourth attorney in retaliation for his filing of Amendment right to be free from administrative grievances against her and unreasonable searches and seizures, and the that prison personnel withheld or mishandled prison’s regulations. He prayed for other pieces of mail. Wilson also complained injunctive relief both against the rule and that prison officials prevented him from against the alleged interference with his mail. exhausting his administrative remedies by placing his Administrative Remedy Procedure forms on backlog pursuant to the The district court dismissed his complaint grievance system’s “abuse of the procedure” and adopted the magistrate judge’s order rule. He requested declaratory and without considering the issues raised in these injunctive relief, monetary damages, and a motions. Wilson argues that the court transfer to a different institution. (1) should have construed his “response to show cause and for injunction” and his “tra- The magistrate judge dismissed Wilson’s verse” as motions for leave to amend the claims of retaliation and interference with le- complaint, (2) erred in dismissing his mail- gal mail for failure to exhaust administrative tampering claims for failure to exhaust remedies under 42 U.S.C. § 1997e(a).1 The administrative remedies, and (3) that we court dismissed his claim of interference with should appoint counsel on appeal. mail addressed to an attorney as frivolous without reaching the question of exhaustion.2 II. Wilson claims that the court should have Wilson then filed a “response to show construed his “response” and his “traverse” cause and for injunction” and a “traverse,” as motions for leave to amend the complaint. complaining that the “abuse of the He did not request such leave from the procedure” rule violated his First magistrate judge, but courts must grant leave Amendment rights of free speech and to amend freely when justice so requires. association. He raised a new claim that the FED. R. CIV. P. 15(a). defendants had violated his Sixth We review failure to allow the amendment for abuse of discretion. United 1 The statute reads: “No action shall be States v. Riascos, 76 F.3d 93, 94 (5th Cir. brought with respect to prison conditions under 1996). Rule 15(a) “circumscribes the section 1983 of this title, or any other Federal exercise of the district court’s discretion; law, by a prisoner confined in jail, prison, or thus, unless a substantial reason exists to other correctional facility until such deny leave to amend, the discretion of the administrative remedies as are available are district court is not broad enough to permit exhausted.” 42 U.S.C. § 1997e(a). denial.” Shipner v. E. Air Lines, Inc., 868 2 Wilson claims, on appeal, that he sought an F.2d 401, 407 (11th Cir. 1989) (dictum). In attorney both in civil matters concerning prison discerning the presence of said “substantial conditions and in matters relating to his criminal reason,” the district court may consider such conviction. His administrative complaints, factors as “undue delay, bad faith, dilatory however, indicate that the mail in fact related to motive on the part of the movant, repeated civil matters.

failure to cure deficiencies by amendments of his previous claims. An amendment to previously allowed, undue prejudice to the add them would be futile. Wilson does, opposing party, and futility of amendment.” however, claim, for the first time in his Jacobsen v. Osborne, 133 F.3d 315, 318 traverse, that the prison officials violated (1) (5th Cir. 1998) (quoting In re Southmark his Sixth Amendment right to counsel, (2) Corp., 88 F.3d 311, 314-15 (5th Cir. 1996)). prison regulations interfering with his legal A denial “without any justifying reason,” mail, and (3) his Fourth Amendment right to however, “is not an exercise of that dis- be free from unreasonable searches and cretion; it is merely an abuse of that seizures. discretion and inconsistent with the spirit of the Federal Rules.” Lowery v. Tex. A & M 1. Univ. Sys., 117 F.3d 242, 245 (5th Cir. The Sixth Amendment provides that “[i]n 1997) (quoting Foman v. Davis, 371 U.S. all criminal prosecutions, the accused shall 178, 182 (1962)). An amendment is futile if enjoy the right to . . . have the assistance of it lacks legal foundation or was presented in counsel for his defense.” U.S. CONST. a prior complaint. Jamieson v. Shaw, 772 amend. VI. Although intrusion into the F.2d 1205, 1208-11 (5th Cir. 1985). attorney-client relationship may constitute a violation of the Sixth Amendment, cf. A. Weatherford v. Bursey, 429 U.S. 545, 552- Rule 15(a) allows Wilson to amend his 53 (1977), the plain language of the Sixth pleading once as of right before the Amendment protects the attorney-client defendants filed a responsive pleading. correspondence only in the criminal setting. Wilson’s response to the magistrate judge’s Wolff v. McDonnell, 418 U.S. 539, 576 order to show cause raised a new claim that (1974). Wilson’s claims are civil. Thus, prison officials interfered with his incoming amending the complaint to include this claim legal mail in February 2000. The defendants would be futile, because the claim does not had not filed a responsive pleading at that have a valid legal basis. The magistrate time, so the magistrate judge should have judge did not abuse her discretion in failing treated this motion as an amendment as of to construe Wilson’s motion as doing so. right. Because the magistrate judge properly re- Because Wilson is entitled to only one fused to consider this claim, it is in effect amendment as of right, he needed to request raised for the first time on appeal. We will leave from the court to amend his complaint not consider a new theory of relief so raised. to raise new issues. A court may construe an Leverette v. Louisville Ladder Co., 183 F.3d issue raised for the first time in a traverse as 339, 342 (5th Cir. 1999), cert. denied, 528 a motion for leave to amend. Riascos, 76 U.S. 1138 (2000). F.3d at 94. By extension, we treat new issues raised in the “response to show cause 2. and for injunction” as motions for leave to Wilson’s claim that interference with his amend, as well. mail violated prison regulations also lacks a legal foundation. A violation of prison In these motions, Wilson repeats several regulations, without more, does not give rise

to a federal constitutional violation. exhausted his administrative remedies “when Hernandez v. Estelle, 788 F.2d 1154, 1158 the time limits for the prison’s response set (5th Cir. 1986). The magistrate judge need forth in the prison Grievance Procedures not have allowed amendment of Wilson’s have expired.” Id. at 295. complaint to include this claim, because it would have been futile to do so. Louisiana provides a three-step system of review for grievances in which offenders 3. submit complaints to the warden, and prison Wilson claims, in his traverse, that the in- officials have a prescribed number of days in terference with his legal mail violated his which to respond. The “abuse of the rights under the Fourth Amendment. We procedure” rule provides that if an offender need not reach this issue, because Wilson’s submits multiple requests during the first failure to exhaust his administrative remedies stage of handling of his first request, that requires us to dismiss the underlying claim.3 request will be processed, but the rest will be backlogged for handling at the warden’s III. discretion. Wilson believes that this rule is Wilson argues that the magistrate judge unconstitutional and that the district court erred in dismissing his claims for interference erred in using it to find that he failed to with his legal mail and retaliation for use of exhaust. the prison grievance procedures for failure to exhaust administrative remedies under 42 A. U.S.C. § 1997e(a). He believes that he Wilson argues that the “abuse of the pro- could not exhaust such remedies because his cedure” rule violates his constitutional right claims were unconstitutionally backlogged to file a grievance and receive a response. pursuant to the “abuse of the procedure” He further complains that the magistrate rule. We review de novo the determination judge did not address it. In fact, no such of a prisoner’s failure to exhaust constitutional right exists. Section 1997e of administrative remedies in a § 1983 action. the Civil Rights of Institutionalized Persons Powe v. Ennis, 177 F.3d 393, 394 (5th Cir. Act, 42 U.S.C. § 1997e, authorizes states to 1999). Section 1997e(a) creates a construct prison grievance procedures that mandatory burden on the district court to district courts may require inmates to dismiss all actions brought by prisoners who exhaust before bringing civil rights suits. have not exhausted administrative remedies. Louisiana promulgated enabling legislation, Underwood v. Wilson, 151 F.3d 292, 294 LA. REV. STAT. ANN. §§ 15:1171-1177 (5th Cir. 1998).4 Moreover, a prisoner has (West Supp. 1989), and the Louisiana Department of Public Safety and Corrections 3 set up the procedure. The United States See discussion infra part III. District Court for the Middle District of 4 We have recognized an exception to the ex- haustion requirement where a prisoner sues a pri- son official exclusively for monetary damages prisoner seeks both monetary and injunctive and the prison grievance procedure does not relief, the exhaustion requirement still applies. provide that relief. McCarthy v. Madigan, 503 Arvie v. Stalder, 53 F.3d 702, 705-06 (5th Cir. U.S. 140, 155 (1992). Where, as here, a 1995).

Louisiana approved it. Martin v. to exhaust his administrative remedies, Catalanotto, 895 F.2d 1040, 1042 (5th Cir. because he did not appeal the prison’s 1990), abrogation on other grounds dismissal of his claim through the available recognized by Marsh v. Jones, 53 F.3d 707 procedures. (5th Cir. 1995). Using internal prison The plain language of 42 U.S.C. grievance procedures is not a right at all, but § 1997e(a) precludes all actions brought by a statutory requirement and procedural prisoners challenging prison conditions under hurdle. § 1983 “until such administrative remedies as are available are exhausted.” Before By failing to address Wilson’s claim, the Congress amended that statute in 1997, it magistrate judge implicitly dismissed it. The read “exhaustion of such plain, speedy, and magistrate judge had the discretion to effective administrative remedies as are dismissed the claim as frivolous. Harper v. available.” Underwood, 151 F.3d at 295 Showers, 174 F.3d 716, 718 (5th Cir. 1999) (quoting 42 U.S.C. § 1997e(a)(1) (1994)). (stating that a court may dismiss a prisoner’s Congress obviously intended that courts in forma pauperis civil rights claim as would enforce the exhaustion requirement frivolous if it lacks an arguable legal basis). strictly. We must dismiss Wilson’s claim. Cf. id. (upholding the dismissal of a B. prisoner’s claim, even though he had filed all Wilson failed to raise his retaliation claim possible appeals through prison grievance in his administrative remedy proceeding doc- procedure, because he had not allowed ument.5 Plainly, then, he has failed to officials time to respond before filing a claim exhaust his administrative remedies. The with the district court). district court did not err in dismissing the claim. D. Wilson filed complaints alleging that mail C. tampering had occurred in July and August Wilson filed a complaint regarding the al- 1999 and February 2000. Because these leged interference, in February 1999, with his claims were backlogged under the “abuse of mail to an attorney, and the prison officials the procedure” rule, he did not receive a re- dismissed this claim as untimely. Even if that sponse through the three-step process. The determination were in error, the district court magistrate judge found that because these properly dismissed the claim.6 Wilson failed grievances were still being processed by pri- son authorities, Wilson had failed to exhaust 5 his administrative remedies. Wilson explains in his brief on appeal that prison officials would not let him amend his Although the plain meaning of the statute Administrative Remedy Procedure to add the compels this result as well, a further policy claim. He has not alleged that they had any duty supports it. Wilson’s backlogged claims re- to do so. 6 The district court dismissed this claim on the basis that it was frivolous. We may affirm the 507 (5th Cir. 1999). district court, however, on any basis supported by the record. Berry v. Brady, 192 F.3d 504,

sult directly from his own litigiousness. no issues we may reach on the merits. We Were we to hold prison authorities to the deny the motion. standard deadlines on all claims, prisoners could easily circumvent the requirement of AFFIRMED. exhaustion simply by filing voluminous numbers of complaints, knowing that the authorities would not be able to address all of them in a timely fashion. Requiring absolute exhaustion may seem harsh, but the prison regulations themselves allow for flexibility to avoid unjust results. The grievance procedure states:

Nothing in this procedure should serve to prevent or discourage an offender from communicating with the Unit Head [warden] or anyone else in the Department of Public Safety and Corrections. . . . All forms of communication to the Unit Head will be handled, investigated, and responded to as the Unit Head deems appropriate.

The magistrate judge did not err in dismissing these claims for failure to exhaust administrative remedies.

IV. Wilson filed a motion for appointment of appellate counsel. A civil rights complainant has no automatic right to the appointment of counsel unless the case presents exceptional circumstances. Freeze v. Griffith, 849 F.2d 172, 175 (5th Cir. 1988) (citing Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982)). A court may, however, appoint counsel to represent an appellant proceeding in forma pauperis in a civil action if the case presents “exceptional circumstances.” Santana v. Chandler, 961 F.2d 514, 515 (5th Cir. 1992). Wilson’s case does not involve exceptional circumstances; indeed, he raises

DeMoss, Circuit Judge, specially concurring: My review of this case indicates that the district court properly dismissed all of Wilson's claims. I therefore concur in the result reached by the panel majority. I write separately to register my disagreement with the panel majority's treatment of Wilson's claims premised upon incidents alleged to have occurred in August 1999 and February 2000. I do not read the relevant Louisiana prison regulations to authorize Louisiana prison authorities to indefinitely (or indeed permanently) postpone consideration of a prisoner's grievance, and thus, that prisoner's access to the federal courts. In my view, the panel majority's reading of the relevant regulations is inconsistent with the full text of the controlling regulations, this Court's precedent, and constitutional principles guaranteeing access to the federal courts.