* Pursuant to Local Rule 47.5, the Court has determined that

this opinion should not be published and is not precedent except

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 96-60450

Cons. w/ No. 96-60452

Summary Calendar

 

TRACY A. HANSEN,

 Plaintiff-Appellant,

versus

OFFICER WILLIAMS; GEANIE COLE;

J.J. STREETER; ROGER COOK;

EDWARD HARGETT; EDDIE LUCAS,

 Defendants-Appellees.

************************

TRACY A. HANSEN,

Plaintiff-Appellant,

versus

DONALD MOORE; JERRY BARBER;

OFFICER JOHN HAYWOOD;

EDWARD HARGETT; EDDIE LUCAS,

 Defendants-Appellees.

________________________________________________

Appeal from the United States District Court for the

Northern District of Mississippi

________________________________________________

December 4, 1996

Before GARWOOD, JOLLY and DENNIS, Circuit Judges.*
under the limited circumstances set forth in Local Rule 47.5.4.

2

GARWOOD, Circuit Judge:

Plaintiff-appellant Tracy Hansen (Hansen), an inmate at the

Mississippi State Penitentiary in Parchman, Mississippi, proceeding

pro se, brought these two separate civil rights suits in the

district court below against various prison officers and a fellow

inmate. A magistrate judge ordered that Hansen’s suits be stayed,

and required Hansen to make a good faith effort to exhaust his

administrative remedies pursuant to 42 U.S.C. § 1997e. Because the

prison’s Administrative Remedy Program allows a prisoner to process

only one claim at a time, Hansen was unable to process his cases.

Despite Hansen’s efforts, the district court ordered that the cases

be dismissed. Hansen appeals in each case. We have sua sponte

consolidated these cases for appellate disposition only. We now

vacate and remand in each case. 

Facts and Proceedings Below

Hansen filed a civil suit in the district court below on April

7, 1994, claiming that various prison officers violated his civil

rights under 42 U.S.C. § 1983 (Hansen v. Moore; our No. 96-60452).

Hansen alleges that on March 25, 1994, while returning to his cell

after completing outdoor recreation, Officers Jerry Barber and John

Haywood physically assaulted him. Hansen claims that Sergeant John

Moore refused to investigate the alleged assault, and that all

three prison officers threatened Hansen with future assaults if he
3

attempted to go to the inmate hospital. Hansen also alleges that

Superintendent Edward Hargett and Commissioner Eddie Lucas failed

to carry out their administrative responsibilities by showing

deliberate indifference and willful neglect when Hansen complained

of the March 25 assault and prior assaults.

On June 6, 1994, Hansen filed in the district court below (in

the same division as the April 7 suit) another section 1983 suit

against other officers of the same prison and an inmate, Geanie

Cole (Hansen v. Williams; our No. 96-60450). Hansen complains that

the officers named as defendants in his suit failed to protect him

from attacks by Cole and other inmates. Hansen also asserts that

he had attempted to use the prison’s Administrative Remedy Program

(Program) to resolve his claim, but that the prison administrators

process only one inmate grievance at a time and that the procedure

takes several months. 

On November 4, 1994, a magistrate judge entered identical

orders in each suit, directing that, pursuant to 42 U.S.C. §

1997e(a)(1), the case be stayed for 90 days and that during the 90-

day period, Hansen make a good faith attempt to exhaust the

available administrative remedies found in the Program. Moreover,

the orders each provided that Hansen file, within 150 days, a

certificate from the Program stating that he had exhausted his

administrative remedies or a statement that he had attempted to

obtain such a certificate but had not been furnished with one.
4

Each order further provided that failure to file a certificate or

a statement within 150 days would result in dismissal of the case

with prejudice.

Soon thereafter, Hansen claims to have begun taking steps

towards complying with the orders. On November 8, 1994, he

allegedly wrote the director of the Program notifying the director

of the magistrate judge’s orders and requesting the director——as

the cases could not be processed——to issue a certificate indicating

that he had exhausted his administrative remedies. Hansen sent a

follow-up letter to the director on December 19, 1994, asking for

a status update on his cases. A Program administrator responded on

January 6, 1995, informing Hansen that only one request could be

processed through the Program at a time, and because he had other

grievances pending in the Program, the administrator would not

entertain either of the two cases.

On March 6, 1995, Hansen filed a motion to lift the 90-day

stay in the second filed of his two cases, Hansen v. Williams. In

the motion, Hansen described his correspondence with the Program

administrator and stated that, despite his good faith efforts, he

was having difficulties obtaining administrative relief in both

cases. The magistrate judge denied the motion on March 8, 1995.

Nothing further transpired in either case until on May 31,

1995, the district court, sua sponte, and without prior notice to

Hansen, entered orders in each case finding that Hansen had failed
1 Hansen filed timely motions for reconsideration in each case

on June 8, 1995. He filed his notice of appeal in each on June 25,

1995. The district court denied the motions in each case on July

8, 1996. Hansen did not file a new notice of appeal in either

case. The notices of appeal became effective on the denial of the

motions for reconsideration. Fed. R. App. P. 4(a)(4).

2 On April 26, 1996, the Prison Litigation Reform Act of 1995

(Act) became law. See Pub. L. No. 104-134, 110 Stat. 1321 (1996).

Section 803(d) of the Act amended 42 U.S.C. § 1997e(a) to now read:

“No action shall be brought with respect to prison

conditions under section 1983 of this title, or any other

5

to comply with the magistrate judge’s order and dismissed each case

without prejudice for failure to comply with an order of the court

and for failure to prosecute, pursuant to Fed. R. Civ. P. 41(b).

Hansen timely appeals in each case.1

Discussion

A district court may sua sponte dismiss an action for failure

to comply with a court order. Long v. Simmons, 77 F.3d 878, 879

(5th Cir. 1996). A sua sponte dismissal by the district court

pursuant to Fed. R. Civ. P. 41(b) will normally be upheld on appeal

unless the court determines that the district court abused its

discretion. Long, 77 F.3d at 879.

Although section 1983 does not impose any general exhaustion

requirement upon litigants, under 42 U.S.C. § 1997e of the Civil

Rights of Institutionalized Persons Act, district courts have

discretion to require an inmate to exhaust prison administrative

remedies prior to having his case heard in federal court.2 Rocky
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). On remand, the district court should

consider to what extent, if any, the Act affects Hansen’s cases.

3 We note that Hansen filed this motion only in his suit against

Officer Williams et al. However, because the motion discusses

Hansen’s efforts to comply with the order with regards to both

cases, we believe that Hansen’s failure to file a motion in his

suit against Moore et al. is not necessarily controlling under the

present facts. The suits were in the same division and identical

orders in each were entered by the same magistrate judge and

district judge.

6

v. Vittorie, 813 F.2d 734, 736 (5th Cir. 1987). Section 1997e

provides district courts with the power to dismiss suits, following

a section 1997e continuance, if a prisoner fails to pursue his

administrative remedies in good faith. Id.; see also Marsh v.

Jones, 53 F.3d 707, 710 n.7 (5th Cir. 1995).

The record tends to show that, at the very least, Hansen has

attempted to comply with the magistrate judge’s order. In addition

to attempting to process his cases with the Program, Hansen wrote

two letters to the director of the Program fully informing the

director of the order’s exhaustion requirements and expressing his

(Hansen’s) desire to satisfy those requirements. Moreover, in his

motion to lift the 90-day stay, Hansen stated that he had made an

effort to resolve his cases through the Program, but that he was

unable to do so because of the Program’s prohibition on accepting

more than one claim at a time from the same prisoner.3 Hansen

repeated this information in his Fed. R. Civ. P. 59(e) motion to
7

alter or amend the judgment.

In dismissing Hansen’s cases without prejudice, however, the

district court apparently did not take into consideration any of

Hansen’s efforts to comply with the order. In its May 31, 1995

opinion and final judgment, the court made no mention of Hansen’s

motion to lift the 90 day stay or any of Hansen’s efforts described

in the motion. Likewise, in its order rejecting Hansen’s Fed. R.

Civ. P. 59(e) motion, the court summarily denied the motion without

offering any explanation for its decision.

For the above reasons, we conclude that the district court

erred in dismissing Hansen’s civil suits without addressing or

apparently considering whether he had reasonably and in good faith

complied with the order. The record indicates that, at minimum,

Hansen had taken some steps towards fulfilling the order’s

requirements. On remand, the district court should consider the

evidence which Hansen claims supports his contention that he made

a good faith attempt to comply with the order, and in particular,

those efforts mentioned in his motion to lift the 90-day stay.

Conclusion

The district court’s orders dismissing Hansen’s civil cases

are each VACATED and each cause is REMANDED.