Curry v. Puckett ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60649
Summary Calendar
CURTIS B CURRY
Plaintiff - Appellant
v.
STEVE W PUCKETT, Superintendent, Mississippi
State Penitentiary; JAMES ANDERSON,
Superintendent, Mississippi State Penitentiary;
CHRISTOPHER EPPS; ANN LEE; LETITIA ROACH;
LAWRENCE HENDERSON; ROBERT ARMSTRONG; LAURENCE
ELLIS; BILLY SMITH; WILLIE JACKSON; DEBORAH
BELL; LINDA JONES; AMOS MITCHNER; JERRELL BOOKER;
M/M JOHN DOE I; JOHN DOE II; RHONDA BILLINGS;
SHIRLEY WHITE; LISA ECHOLS; DORIS HUDSON; DERRIA
HILL; GLORIA FOSTER; JD STAFFORD; RICHARD
NEWSKY; GENE ROWZEE; MARSHA LUSK; JOHN KEYS;
GLORIA HOLLIS; JOAN ROSS; ETHEL CARLIZE; EDDIE
CATES; JO P EDWARD; WANDA MITCHNER; PATTY LEGG;
BARRY PARKER; THOMAS MCDANIEL; OLIVER JONES;
LARRY KELLEY; WALTER BOOKER; ROGER PARKER; WILLIE
BROWN; EZELL STANLEY; WAYNE WATSON; FRED O’BANNON;
EUGENE CANNON; A FORREST
Defendants - Appellees
--------------------
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:98-CV-185-B-A
--------------------
May 8, 2000
Before KING, Chief Judge, and HIGGINBOTHAM and STEWART, Circuit
Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 5TH CIR.
R. 47.5.4.
No. 99-60649
-2-
Curtis B. Curry, Mississippi prisoner # 81606, attempts to
appeal the district court’s dismissal of his 42 U.S.C. § 1983
complaint for failure to exhaust administrative remedies. Curry
filed three motions to reconsider previous orders by the court
within ten days of entry of those orders, which would serve to
stay the running of the time to file a notice of appeal under
FED. R. CIV. P. 59(e). However, Curry’s final two motions raised
substantially the same claims on appeal, and the second one
therefore does not serve to stay the running of the time in which
Curry was required to file his notice of appeal. Ellis v.
Richardson, 471 F.2d 720, 720 (5th Cir. 1973). Consequently,
Curry’s notice of appeal is timely only as to the denial of his
third and last motion for reconsideration. This motion is
construed as a motion under FED. R. CIV. P. 60(b). See Eleby v.
American Med. Sys., 795 F.2d 411, 412 (5th Cir. 1986). Review is
for abuse of discretion. Latham v. Wells Fargo Bank, N.A., 987
F.2d 1199, 1203 (5th Cir. 1993).
Curry asserts that the district court erred in dismissing
his complaint for failure to exhaust his administrative remedies.
He maintains on appeal that he properly exhausted his remedies as
to two Rules Violation Reports that he received in prison, but he
failed to address this matter in the district court. Because the
district court never had an opportunity to rule on the issue,
this court cannot review it for error. See Leverette v.
Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999), cert.
denied, 120 S. Ct. 982 (2000).
No. 99-60649
-3-
Curry contends that he made a good-faith attempt to complete
a challenge through the administrative remedy procedure, but that
the prison administration obstructed justice by not naming
Curry’s selection as respondent on the first step. Curry has not
shown that the administration was required to consider his wishes
on this matter or that his failure to complete the process was
the result of a good-faith effort to comply. Moreover, under the
current law, the district court does not need to determine
whether a prisoner has attempted a good-faith pursuit of his
administrative remedies. 42 U.S.C. § 1997e; Underwood v. Wilson,
151 F.3d 292, 294 (5th Cir. 1998), cert. denied, 526 U.S. 1133
(1999). His contentions are without merit.
Curry finally contends that he exhausted his remedies as to
one claim by appealing his reclassification. Curry was
reclassified as a result of an employee’s citation of Curry for a
sexual-misconduct violation. This write-up was the basis for
Curry’s failed challenge through the administrative remedy
procedure. Given that the challenged actions are intertwined,
Curry’s failure to exhaust his administrative remedies as to the
one count precludes review of the other. The district court’s
dismissal of Curry’s motion to reconsider the dismissal of his
complaint for failure to exhaust his administrative remedies is
AFFIRMED.