Ferrington v. Louisiana Department of Corrections , 315 F.3d 529 ( 2002 )

REVISED DECEMBER 27, 2002
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 02-30256
_______________________
RICKY D. FERRINGTON,
Plaintiff-Appellant,
versus
LOUISIANA DEPARTMENT OF CORRECTIONS;
RICHARD STALDER; SHERIFF’S DEPARTMENT
CLAIBORNE PARISH; STEVE MIDDLETON;
UNKNOWN CORRECTIONS CORP; LEROY HOLIDAY;
GILL GRAY; UNKNOWN NURSE, SISSY ECABAR;
UNKNOWN INSURANCE CO.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
_________________________________________________________________
December 19, 2002
Before GARWOOD, JONES, and STEWART, Circuit Judges.
PER CURIAM:
The significant issue in this prisoner’s civil rights
case appeal is whether Ricky Ferrington (“Ferrington”) failed to
exhaust the Louisiana prison grievance remedies because such
remedies were not “available” to him. Ferrington’s argument turns
on the interpretation of a recent Louisiana Supreme Court decision,
Pope v. State, 792 So.2d 713 (La. 2001). We conclude that although
Pope held Louisiana’s statutory prison grievance system
unconstitutional to the extent that it purported to deprive state
courts of original jurisdiction over prisoner cases, Pope did not
obliterate the prison grievance remedy. Under the Prison
Litigation Reform Act of 1995, 110 Stat. 1321-73, as amended, 42
U.S.C. § 1997e (2002) (“PLRA”), Ferrington was required to exhaust
his administrative remedy. The district court’s dismissal without
prejudice for failure to exhaust is affirmed.
Ricky Ferrington filed his 42 U.S.C. § 1983 complaint
against the Louisiana Department of Corrections (“LDOC”) and
various employees, asserting negligent and intentional violations
of his right to medical treatment under the Eighth Amendment. His
claims arose from the allegedly faulty treatment he received at the
Claiborne Parish Detention Center after a corneal transplant. He
asserted that the defendant’s actions resulted in his near
blindness. Ferrington averred that he declined to file prison
grievance complaints because his blindness exempted him from the
procedures, the prison had not posted a grievance policy, and the
Louisiana Supreme Court had ruled the state grievance procedure
unconstitutional.
2
The district court dismissed Ferrington’s complaint
without prejudice after it adopted a magistrate judge’s
recommendation based on Ferrington’s failure to exhaust state
remedies pursuant to 42 U.S.C. § 1997e(a).
The PLRA requires a prisoner to exhaust “such
administrative remedies as are available” before he may file suit
under § 1983 objecting to state prison conditions. 42 U.S.C.
§ 1997e(a); see Underwood v. Wilson, 151 F.3d 292, 293 (5th Cir.
1998). A prisoner must exhaust the administrative remedies
“irrespective of the forms of relief sought and offered through
administrative avenues.” Booth v. Churner, 532 U.S. 731, 741 n.6
(2001). This court reviews de novo a district court’s dismissal of
a prisoner’s complaint for failure to exhaust. Powe v. Ennis, 177
F.3d 393, 394 (5th Cir. 1999).
Relying on Pope, Ferrington contends that the Louisiana
Supreme Court held that prison grievance procedures adopted by the
LDOC are unconstitutional as applied to tort actions. Pope, 792
So.2d at 716-21. He continues that, because the state legislature
has not amended the statutes, there is no authority under Louisiana
law for administrative remedies in prison.
Ferrington is correct that the Louisiana Supreme Court
found the applicable statutes unconstitutional in part. The
authorization for prison administrative remedies is found in La.
Rev. Stat. §§ 15:1171-1179. In Pope, the plaintiff contended that
these statutes unconstitutionally divested the state district
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courts of their original jurisdiction in tort actions. 792 So.2d
at 717. The Louisiana Supreme Court agreed that, because § 15:1177
confines judicial review in state court to the administrative
record, permits review only of issues raised at the agency level,
and limits the grounds for reversal, the state district courts have
been deprived of original jurisdiction in violation of La. Const.
art. V, § 16(A). Id. at 718-20; see § 15:1177(A)(5), (9). The
court accordingly held the statutory scheme pertaining to prison
administrative procedures unconstitutional “to the extent that the
statutes are applied to tort actions.” Pope, 792 So.2d at 721.
The Supreme Court noted that it did not find the addition of an
administrative remedy procedure problematic. Id.
Ferrington’s argument has some superficial appeal;
indeed, following Pope, one of Louisiana’s appellate courts has
held that prisoners no longer need exhaust prison administrative
remedies before filing suit for tort recovery in state court. See
Creppel v. Dixon Corr. Inst., 822 So.2d 760 (La. App. 1st Cir.
2002). Nevertheless, Ferrington is proceeding in federal, not
state court, and his claim is procedurally governed by federal law.
Under the PLRA, all “available” remedies must now be exhausted,
regardless of the nature of the relief offered. Porter v. Nussel,
534 U.S. 516, 524 (2002); see also Wright v. Hollingsworth, 260
F.3d 357, 358 (5th Cir. 2001). It is not up to this court to
predict the ultimate interpretation of Pope as Ferrington asks us
to do. It remains to be seen whether Pope will be held to declare
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the entire prison administrative grievance system which has been in
effect since 1985, unconstitutional. In Pope the Louisiana Supreme
Court only addressed the impact on the constitutional jurisdiction
of Louisiana state courts of that aspect of the grievance system
that purported to determine the evidentiary weight of the results
of the grievance proceedings and the nature of post-exhaustion
judicial proceedings. The Supreme Court found that limiting the
district court to deferential judicial review of the prison
administrative decision violated the state district courts’ grant
of original jurisdiction in all civil actions contained in the
Louisiana Constitution. LA. CONST. art. V, § 16. This appears to
be a different issue from whether the mere existence of the
administrative grievance system is constitutional and whether the
legislature may require a prisoner’s exhaustion of administrative
remedies prior to filing suit in state court.
But, while Pope or its progeny govern the effect of the
prison administrative system on a claim later filed in state court,
it has no impact on the necessity of exhaustion prior to the filing
of a § 1983 claim in federal court. As long as a prison
administrative grievance system remains in force (as the state
assures us is the case), Ferrington must exhaust. Exhaustion
remains mandatory, “irrespective of the forms of relief sought and
offered through administrative remedies.” Booth, 532 U.S. at 741
n.6; see also Richardson v. Spurlock, 260 F.3d 495, 499 (5th Cir.
2001) (affirming dismissal of a claim for failure to exhaust after
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the inmate “incorrectly filed an administrative appeal instead of
a disciplinary appeal”).
Ferrington alleges two additional reasons why he should
not be required to exhaust administrative remedies: that he should
be excused from the exhaustion requirement because of his
blindness, and that there was no grievance procedure in place at
the Claiborne Parish Detention Center at the time of his injury.
Ferrington’s alleged blindness clearly did not prevent him from
filing this § 1983 action, from appealing a disciplinary hearing,
or from filing prison grievances after his transfer to another
facility. Nothing has prevented him from exhausting his available
remedies. Further, his quarrel with any details of the Claiborne
Parish Detention Center grievance procedure is irrelevant, inasmuch
as he never attempted to utilize the procedure and was well aware
of the general procedural requirements described in the inmate
handbook.1
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
1
There is also no merit in Ferrington’s complaint that the
district court did not conduct a de novo review of the magistrate
judge’s recommendation. Finally, to the extent Ferrington appears
to request appointment of counsel for his assistance, we deny the
motion; he has shown himself fully able to present his arguments in
a case that is neither legally nor factually complex. Ulmer v.
Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
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