Donnelly v. Edwards , 95 F. App'x 702 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 23, 2004
Charles R. Fulbruge III
No. 03-60482 Clerk
Summary Calendar
LONNIE DONNELLY,
Plaintiff-Appellant,
versus
LINDA EDWARDS; SCOTT FITCH, Warden; DIANE FOY, Commander;
DANA RICKS, Hearing Officer; NICHOLE BERANICH, Unit Manager;
W. CLEMENS, Chief of Security,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:02-CV-1538-WS
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Before DUHÉ, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:1
Lonnie Donnelly, Mississippi prisoner # K1304, appeals the
magistrate judge’s dismissal of his 42 U.S.C. § 1983 complaint.
The magistrate judge dismissed Donnelly’s claims regarding a denial
of access to the courts for failure to state a constitutional
claim. Donnelly has not established that he was unable to proceed
in a court case as a result of the delays and the denial of
assistance in the law library. See Lewis v. Casey, 518 U.S. 343,
349-53 (1996); Brewer v. Wilkinson, 3 F.3d 816, 821 (5th Cir.
1
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that this opinion should not be published and is not precedent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.
1993). Donnelly has not established that the magistrate judge
erred in denying relief on this ground. See Calhoun v. Hargrove,
312 F.3d 730, 733 (5th Cir. 2002).
The magistrate judge dismissed the remainder of Donnelly’s
claims because he had not established that he had exhausted his
administrative remedies. The exhaustion requirement of 42 U.S.C.
§ 1997e(a) is mandatory. Days v. Johnson, 322 F.3d 863, 866 (5th
Cir. 2003). However, a mere allegation of exhaustion without proof
is sufficient to overcome dismissal. Underwood v. Johnson, 151
F.3d 292, 296 (5th Cir. 1998). Donnelly’s allegations against
Scott Fitch, Diane Foy, Nichole Beranich, and W. Clemens do not
sufficiently specify the exhaustion of administrative remedies, and
the dismissal by the magistrate judge is AFFIRMED.
Donnelly alleges, however, that he filed an administrative
appeal following his disciplinary conviction by Dana Ricks and that
relief was denied on appeal. This assertion is sufficient to
establish the exhaustion of administrative remedies. See id.However, Donnelly cannot establish that he is entitled to relief on
this claim. See Sandin v. Conner, 515 U.S. 472, 475, 486-87
(1995); Superintendent, Massachusetts Corr. Inst. v. Hill, 472 U.S.
445, 455-56 (1985). Therefore, this court AFFIRMS the dismissal on
this alternate ground. See Sojourner T v. Edwards, 974 F.2d 27, 30
(5th Cir. 1992).
AFFIRMED.
2