* 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that this opinion should not be published and is not precedent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.

United States Court of Appeals

Fifth Circuit

FILED

October 22, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-20367

Conference Calendar

 

MICHAEL KUYKENDALL,

Plaintiff-Appellant,

versus

TEXAS DEPARTMENT OF CRIMINAL JUSTICE

EXECUTIVE DIRECTOR; TEXAS BOARD OF

CORRECTIONS; WAYNE SCOTT; R. THALER, 

Warden; MARIA I. LUNA, Defendants sued

in their individual and official capacity;

GARRY JOHNSON; UNIVERSITY OF TEXAS MEDICAL

BRANCH; RANDALL HEALY, Dr.,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-01-CV-3986

--------------------

Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.

PER CURIAM:*

Michael Kuykendall, Texas prisoner # 737934, appeals the

district court’s dismissal without prejudice of his 42 U.S.C.

§ 1983 complaint for failing to exhaust administrative remedies. 

He maintains that he may proceed on his claims involving his

medical condition – that prison officials improperly placed him
No. 03-20367

-2-

in a cell with an inmate who had Hepatitis C, causing Kuykendall

to contract the disease, and that defendant Healy refused to

treat Kuykendall’s disease before it had progressed – because the

Texas Department of Criminal Justice does not have authority over 

medical staff. Kuykendall’s assertions regarding his improper

housing assignment involve prison life and were within the

control of prison officials, so exhaustion was required. See

Porter v. Nussle, 534 U.S. 516, 524-32 (2002). The evidence

presented by Kuykendall establishes that the prison had some

formalized method of considering complaints about medical staff

available to prisoners. See 42 U.S.C. § 1997e(a). Kuykendall

has not established that the district court erred in granting

summary judgment in favor of the defendants on this ground. 

See Fraire v. City of Arlington, 957 F.2d 1268, 1273 (5th Cir.

1992). 

Kuykendall also contends that he properly exhausted his

remedies with respect to his claim that he was not allowed to

attend State Classification Committee (SCC) meetings after Warden

Thaler implemented a policy and his claim that defendant Luna

delayed his release from administrative segregation by denying

him a chance to enter a gang denouncement program. Kuykendall’s

grievance does not address Luna’s failure to admit him into the

denouncement program, and he did not exhaust his remedies on this

ground. See Porter, 534 U.S. at 524-32. 
No. 03-20367

-3-

Kuykendall did, however, exhaust his remedies with respect

to his claim that he was denied due process by his inability to

attend an SCC hearing in March 2001 as a result of Thaler’s

policy. He is not, however, entitled to relief on this ground,

as he does not have a liberty interest in his classification as a

gang member or in his nonplacement in administrative segregation. 

See Sandin v. Conner, 515 U.S. 472, 485 (1995); Harper v.

Showers, 174 F.3d 716, 719 (5th Cir. 1999). Consequently, the

judgment of the district court is AFFIRMED.