Hicks v. State of Mississippi , 76 F. App'x 529 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS September 5, 2003
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 02-60891
Summary Calendar
JACKIE R. HICKS,
Plaintiff-Appellant,
versus
STATE OF MISSISSIPPI; MISSISSIPPI DEPARTMENT OF CORRECTIONS; ROBERT
L. JOHNSON, COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS;
EDDIE CATES, Acting Warden; ALICE ARNOLD, Sergeant,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:02-CV-201-LN
Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Jackie Hicks, Mississippi prisoner # 65534, appeals the
district court’s dismissal with prejudice of her 42 U.S.C. § 1983civil rights complaint for failure to exhaust administrative
*
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this opinion should not be published and is not precedent except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.
remedies, as frivolous, and for failure to state a claim for
relief.1 Hicks has also filed a motion for appointment of counsel.
Dismissals for failure to exhaust administrative remedies
under 42 U.S.C. § 1997e(a) are reviewed de novo.2 Hicks argues
that she qualifies for an exception to the exhaustion requirement
because the grievance procedure is inadequate and complicated. The
administrative remedy exhaustion requirement of 42 U.S.C. § 1997e
is mandatory regardless of the forms of relief sought or offered
through administrative avenues.3 This court has taken a strict
approach to the exhaustion requirement.4 Nevertheless, we have
recognized that an exception to the exhaustion requirement exists
for certain defenses such as waiver, estoppel, or equitable
tolling.5
The record reflects that Hicks did not comply with the
Administrative Remedy Procedure (ARP) grievance process.
Specifically, the ARP directed her to submit a complaint satisfying
numerous prerequisites. Hicks never responded to this directive.
Her argument that the grievance process was difficult is
1
28 U.S.C. § 1915(e)(2)(B)(i),(ii); 42 U.S.C. § 1997e(a).
2
Powe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999).
3
Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003).
4
Id.5
Wendell v. Asher, 162 F.3d 887, 890-91 (5th Cir. 1998).
2
insufficient to warrant an exception to the exhaustion
requirement.6
Although the district court’s dismissal was proper,
it is unclear whether the dismissal was with prejudice with
respect to the exhaustion requirement. The court addressed the
exhaustion requirement at length in its memorandum opinion of
dismissal but it made no mention of this ground in the final
judgment. However, the court’s final judgment did provide that the
§ 1915(e)(2)(b)(i) and (ii) dismissal was pursuant to the reasons
contained in the memorandum opinion, which encompassed the
exhaustion analysis. Because it is unclear whether the dismissal
was with prejudice with respect to exhaustion, the judgment of the
district court will be affirmed as modified to reflect that the
dismissal for failure to exhaust is without prejudice.7 Because
this court is affirming the judgment as modified on this basis, the
district court’s dismissal of Hicks’s complaint for failure to
state a claim of relief need not be addressed.8
Hicks argues that the district court erred in failing to
permit her to amend her complaint. Hicks had filed a “motion for
discovery” which the court denied and is properly construed as a
Federal Rule of Civil Procedure 60(b)(6) motion. Hicks failed to
6
See Days, 322 F.3d at 866.
7
See generally Wright, 260 F.3d at 359.
8
See Sojourner T. v. Edwards, 974 F.2d 27, 30 (5th Cir.
1992).
3
file a notice of appeal from the court’s order denying her Rule
60(b) motion. Accordingly, this court lacks jurisdiction to review
the motion.9
For the first time on appeal, Hicks alleges that Arnold
discussed the incident with other inmates in an attempt to incite
retaliation against her and that the prison manual violated her
rights under the Fourteenth Amendment. Hicks is precluded from
raising these issues for the first time on appeal.10
The judgment of the district court dismissing Hicks’s
complaint is AFFIRMED as MODIFIED to reflect a dismissal without
prejudice for failure to exhaust administrative remedies. Hicks’s
motion for appointment of counsel is DENIED.
9
See FED. R. APP. P. 4(a)(1)(A); Ledford v. Thomas, 275 F.3d
471, 475 (5th Cir. 2001), cert. denied, 536 U.S. 927 (2002).
10
See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342
(5th Cir. 1999).
4