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Powe v. Ennis

United States Court of Appeals, Fifth Circuit
Jun 16, 1999
177 F.3d 393 (5th Cir. 1999)

Summary

holding that the administrative remedies are deemed exhausted when a prisoner has filed his step 2 and the time has expired for the prison system to provide its response

Summary of this case from Thompson v. Eason

Opinion

No. 98-40234

June 16, 1999

Robert Lee Powe, Amarillo, TX, pro se.

Appeal from the United States District Court for the Eastern District of Texas.

Before SMITH, DeMOSS, and STEWART, Circuit Judges.


Robert Powe appeals the dismissal of his 42 U.S.C. § 1983 complaint. He contends that the district court erred in dismissing, without prejudice, his failure-to-protect claim and conspiracy claim for failure to exhaust his administrative remedies pursuant to 42 U.S.C. § 1997e. Joining the other circuits that have explicitly addressed this issue, we proceed by reviewing the dismissal de novo. See Alexander v. Hawk, 159 F.3d 1321, 1323 (11th Cir. 1998); Jenkins v. Morton, 148 F.3d 257, 259 (3d Cir. 1998); White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997); Garrett v. Hawk, 127 F.3d 1263, 1264 (10th Cir. 1997).

Powe does not challenge the dismissal, with prejudice, of his disciplinary claim, so that portion of the judgment is affirmed. His claim that the magistrate judge is biased is without merit. See Liteky v. United States, 510 U.S. 540, 555 (1994).

Section 1997e, as amended by the Prison Litigation Reform Act, provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) (West Supp. 1998). The Texas Department of Criminal Justice currently provides for a two-step procedure for presenting administrative grievances. See Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998) (citing Texas Department of Criminal Justice, Administrative Directive No. AD-03.-82 (rev.1) (Jan. 31, 1997)).

We have reviewed the record, which contains Powe's step 1 and step 2 grievances, in which he alleged that the defendant officers had failed to protect him after he told them that another inmate had threatened him and that they had tried to cover up their failure to protect him by issuing a bogus disciplinary case. Because Powe presented these claims through the prison grievance system, the district court erred in dismissing the complaint in part for failure to exhaust.

The district court held that Powe had failed to exhaust his administrative remedies as to these because the prison's response to his step 2 grievance had failed specifically to address some of his arguments. Powe filed his step 2 grievance on May 12, 1997. The prison system had forty days to provide its response to it. Powe did not file this suit until September 30, 1997, well after the due date for the state's complete response to the step 2 grievance.

See Wendell, 162 F.3d at 891 (setting forth the Texas Department of Criminal Justice grievance procedure).

A prisoner's administrative remedies are deemed exhausted when a valid grievance has been filed and the state's time for responding thereto has expired. Accordingly, we vacate that portion of the judgment and remand for further proceedings consistent with this opinion.

See Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998), cert. denied, 1999 U.S. LEXIS 3500 (May 24, 1999) (No. 98-7852).

AFFIRMED IN PART; VACATED AND REMANDED IN PART.


Summaries of

Powe v. Ennis

United States Court of Appeals, Fifth Circuit
Jun 16, 1999
177 F.3d 393 (5th Cir. 1999)

holding that the administrative remedies are deemed exhausted when a prisoner has filed his step 2 and the time has expired for the prison system to provide its response

Summary of this case from Thompson v. Eason

concluding that "a prisoner's administrative remedies are deemed exhausted when a valid grievance has been filed and the state's time for responding thereto has expired."

Summary of this case from Jarrett v. Smith

involving failure of the state to comply with deadlines in the administrative process

Summary of this case from Clifford v. Louisiana

In Powe, the inmate filed his step two grievance on May 12, 1997 and his lawsuit on September 30, 1997, well after the due date for the state to provide its response.

Summary of this case from Rodgers v. Lewis

In Powe v. Ennis, 177 F.3d 393 (5th Cir. 1999), the United States Court of Appeals for the Fifth Circuit held that a prisoner's administrative remedies are deemed exhausted when a valid grievance has been filed and the state's time for responding thereto has expired.

Summary of this case from ORR v. ELYEA

applying Texas law

Summary of this case from Petty v. Goord

deeming prisoner to have exhausted a claim to which prison officials failed to respond because he pressed it at both steps of a two-step administrative grievance process and waited to file his lawsuit until after the time afforded for a response had lapsed

Summary of this case from Skinner v. Cunningham
Case details for

Powe v. Ennis

Case Details

Full title:ROBERT LEE POWE, PLAINTIFF-APPELLANT, v. GILBERT L. ENNIS, SERGEANT, BETO…

Court:United States Court of Appeals, Fifth Circuit

Date published: Jun 16, 1999

Citations

177 F.3d 393 (5th Cir. 1999)

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