Revised December 30, 1998

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-41291

Summary Calendar

CHANDLER WENDELL, JR.,

Plaintiff-Appellant,

VERSUS

LLOYD ASHER, Correctional Officer; WILLIAM PITTMAN,

Correctional Officer; BILLYE FORREST, Correctional

Lieutenant; RICKY TARVER, Correctional Captain; MIKE

NICHOLS, Correctional Major; TRACEY PORTER, Classification

Officer; LINDA DEHOYOS, Doctor; TIMOTHY WEST, Senior Warden,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Texas

December 24, 1998

Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges.

DeMOSS, Circuit Judge:

Texas state prisoner Chandler Wendel l, Jr. appeals the

district court’s dismissal of this civil rights action for failure

to exhaust administrative remedies prior to bringing suit. We

affirm.2 I. RELEVANT FACTS

Proceeding pro se and in forma pauperis, Wendell filed a civil

rights complaint pursuant to 42 U.S.C.A. § 1983 against

Correctional Officer Lloyd Asher, Sergeant William Pittman,

Lieutenant Billye Forrest, Captain Ricky Tarver, Major Mike

Nichols, Classification Officer Tracey Porter, Prison Psychiatrist

Dr. Linda Dehoyos, and Warden Timothy West, all prison officials at

the Stiles Correctional Facility in Beaumont, Texas.

Wendell suffers from AIDS and is housed in a medical

administrative segregation unit. On June 17, 1997, Officer Asher

arrived to escort Wendell to an appointment with prison

psychiatrist Dr. Linda Dehoyos. En route, Wendell requested that

he be taken by the medical unit where he could obtain cough syrup

for congestion. Officer Asher refused. When Wendell arrived at

Dr. Dehoyos’ office, he explained his physical symptoms to the

doctor and again requested cough syrup. Dr. Dehoyos escorted

Wendell to the medical unit for further examination.

While a prison nurse was taking Wendell’s vital signs, Officer

Asher came into the medical unit and, according to Wendell, became

angry that Wendell had requested cough syrup again. Wendell claims

that Officer Asher told the nurse to disconnect Wendell from the

monitoring equipment and then told Wendell that he had “messed up.”

Officer Asher instructed Wendell to get up and return to his cell.3

Apparentl y Wendell hesitated, which angered Officer Asher more.

Eventually, Officer Asher physically pulled Wendell to a standing

position and began walking him to the door. Wendell claims that

Officer Asher took two steps toward the door and then suddenly

jerked up on the handcuffs which were fastened behind W endell’s

back, forcing Wendell down over Asher’s leg and to the floor.

While Wendell was down, Officer Asher jumped on his back, grabbed

his head and began banging it on the concrete floor. Wendell, who

states that he is in the last stages of a terminal case of AIDS,

claims he did not resist.

The entire incident was observed by Dr. Dehoyos and the prison

nurse. Wendell claims that he sustained serious injury.

Specifically, Wendell claims that his face was split open above the

left eyebrow. Wendell also claims that Officer Asher jerked the

handcuffs so ha rd that the right cuff was ripped off his hand,

creating a two inch laceration. Finally, Wendell claims that his

ribs were bruised.

After the incident, Officer Asher reported Wendell for a

disciplinary infraction, claiming that Wendell had refused to

respond to a repeated order to stand up. Defendant Captain Tarver

investigated the disciplinary report. On June 27, 1997, there was

a hearing on the merits of Officer Asher’s disciplinary report

against Wendell. At the hearing, Wendell claims that he and his

representative were instructed to wait outside while Captain Tarver

“coached” Archer on his testimony. Officer Archer then testified4

that Wendell had refused to stand up when Asher gave him a direct

order in the medical unit. Wendell claims that the prison nurse

gave conflicting testimony that Wendell did get up when asked.

Captain Tarver found that W endell had committed a disciplinary

infraction, and imposed significant additional restraints on

Wendell’s confinement as a result. Wendell claims that the

disciplinary report and subsequent hearing were merely a

contrivance to conceal or distract attention from Officer Asher’s

misconduct towards Wendell, in violation of his federally protected

right to due process.

Wendell also claims that the June 17, 1997 incident was not

the first time that he had either been subjected to excessive

physical force or threatened with the use of excessive force by

correctional officers at the medical segregation unit. Wendell’s

Original Complaint desc ribes at least two prior incidents of

excessive force, which occurred in December 1995 and November 1996,

and are apparently the subject of another pending civil rights

case. Wendell claims that he requested a transfer to another

facility in April 1997 because he feared for his safety in the

wake of these prior incidents. Wendell alleges that defendant

Porter, a classification officer at the unit, played a role in

denying the April 1997 transfer request.

Wendell also describes at least two incidents in which he was

threatened with physical force by corre ctional officers at the

medical segregation unit. Both of those incidents occurred in May5

1997. Wendell claims that the May 1997 threats of violence were

e ither witnessed by or related to Sergeant Pittman, Lieutenant

Forrest and Major Nichols, but that those officials took no action

to protect him from further harm. Wendell also claims that he

informed the prison psychiatrist, Dr. D ehoyos about the problem,

but that the doctor expressed a reluctance to get involved in

“security issue s.” Finally, Wendell claims that the warden,

defendant West, had actual knowledge th a t medical segregation

inmates were being physically abused by the guards and that West

acquiesced in that unconstitutional treatment.

II. PROCEDURAL HISTORY

Wendell filed suit on July 28, 1997. Wendell’s Original

Complaint alleges Eighth Amendment claims for use of excessive

force and deliberate indifference to his right to be free from the

use of excessive force against Offic er Asher, Sergeant Pittman,

Lieutenant Forrest, Major Nichols, Dr. Deho yos, Warden West, and

the Classification Officer, Porter. Wendell’s Original Complaint

also alleges Fourteenth Amendment claim s for deprivation of due

process in the handling of the disciplinary hearing and subsequent

disciplinary action agains t Captain Tarver and Officer Asher.

Wendell’s Original Complaint unambiguously seeks both monetary and

injunctive reli ef. Specifically, Wendell asks that he be

transferred from the facility where he is being held, that the6

federal courts enjo in all harassment and retaliation by prison

officials until he is transferred, that his disciplinary record be

expunged to eliminate any consequences from the tainted

disciplinary proceedings, that he be returned to the more favorable

classification status that he enjoyed prior to the disc iplinary

hearing, and finally, that the federal court award him actual and

exemplary monetary damages against all defendants.

The district court referred the matter to a Magistrate Judge.

The Magistrate Judge entered a Memorandum and Recommendation noting

that Wendell’s Complaint had been filed on July 28, 1997, only a

short time period after the June 17, 1997 incident, and that

Wendell had not alleged exhaustion of administrative remedies.

Wendell filed objections, asserting that administrative remedies

were exhausted as of July 30, 199 7, two days after his Complaint

was filed. The district court conducted a de novo review and then

dismissed for failure to exhaust administrative remedies prior to

filing suit.

III. THE STATUTORY EXHAUSTION REQUIREMENT

Title 42 U.S.C.A. § 1997e require s that a state prisoner

exhaust available administrative remedies prior to filing suit in

federal district court under 42 U.S.C.A. § 1983. The applicable

version of § 1997e provides:

No action shall be brought with respect to prison

conditions under section 1983 of this title, or any7 other Federal law, by a pri soner confined in any

jail, prison, or other correctional facility until

such administrative remedies as are available are

exhausted.

42 U.S.C.A. § 1997e (Supp. 1998). That provision plainly requires

that administrative remedies be exhausted before the filing of a

§ 1983 suit, rather than while the action is pending.

Section 1997e was substantially amended by passage of the

Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, § 803,

110 Stat. 1321, which took effect April 26, 1996. Prior to passage

of the PLR A, § 1997e provided only that a federal district court

had the discretion to require exhaustion when such a requirement

would be “appropriate and in the interests of justice.” The prePLRA version of § 1997e limited that discretion by including

requirements that the available remedies be “plain, speedy, and

effective,” and that they meet certain minimum standards defined in

the statu te. S ee 42 U.S.C.A. § 1997e (1994). Even if the court

made a decision to require exhaustion, the statutory procedure

under the pre-PLRA version of § 1997e was to stay the case for up

to 180 days to permit exhaustion. Thus, prior to April 1996, the

statutor y exhaustion requirement applicable to § 1983 suits by

state prisoners was entirely discretionary, subject to significant

limitations, and required merely a stay, rather than dismissal.

Cf. Underwood v. Wilson

, No. 97-40536, 1998 WL 476217 (5th Cir.

Aug. 14, 1998); Whitley v. Hunt

, No. 97-40938, 1998 WL 740134 (5th

Cir. Oct. 23, 1998).8

We recently held that the exhaustion requirement imposed by

amended § 1997e is not jurisdictional. Underwood , 1998 WL 476217

at *2-3. Rather, the amended statute imposes a requirement, rather

like a statute of limitations, that may be subject to certain

defenses such as waiver, estoppel, or equitable tolling. See id

.

at *3 (citing Zipes v. Trans World Airlines

, 102 S. Ct. 1127

(1982)). “[N]on-jurisdictional exhaustion requirement[s] may, in

certain rare instances, be excused.” I d

. at *5 (citing McCarthy v.

Madigan

, 112 S. Ct. 1081 (1992)). M cCarthy stated that the

decision to require exhaustion pursuant to § 1997e would depend in

part upon the relative strength of the individual prisoner’s

interest in obtaining prompt judicial redre ss and the

countervailing institutional interests that favor exhaustion. S ee

McCarthy

, 112 S. Ct. at 1087. M cCarthy

, however, was interpreting

t he limited and discretionary exhaustion requirement embodied in

the pre-PLRA version of § 1997e. That largely discretionary

balancing test cannot survive Congress’ 1996 amendment of § 1997e.

By shearing § 1997e of the substantial limitations upon exhaustion

that were embodied in the prior version of the statute, Congress

unambiguously expressed its intent that exhaustion be generally

imposed as a threshold requirement in prisoner cases. Underwood

,

1998 WL 476217 at *5 (identifying Congressional purpose to provide

relief from frivolous prisoner claims by requiring exhaustion); see

also Garrett v. Hawk

, 127 F.3d 1263, 1265 (10th Cir. 1997). It9

would therefore be contrary to both Congress’ intent and the plain

language of the amended statute to continue applying in every case

the discretionary balancing test defined in McCarthy for use with

the pre-PLRA version of the statute. Absent a valid defense to the

exhaustion requirement, e.g.

, Whitley

, 1998 WL 740134 (holding that

§ 1997e does not require exhaustion of remedies that are not

capable of providing redress, and therefore “available”), the

statutory requirement enacted by Congress that administrative

remedies be exhausted before the filing of suit should be imposed.

To hold otherwise would encourage premat ure filing by potential

litigants, thus undermining Congress’ purpose in passing the PLRA,

which was to provide the federal courts some relief from frivolous

prisoner litigation. See Underwood , 1998 WL 476217 at *5 (citing

legislative history in support of decision dismissing claims that

were ex hausted after suit was filed but before claims were

dismissed).

Having identified the statutory exhaustion requirement and

having defi ned the relevant test for determining whether the

requirement may be excused, we turn to an examination of whether

Wendell exhausted available remedies before filing suit.

IV. WENDELL’S ADMINISTRATIVE GRIEVANCES

The Texas Department of Criminal Justice currently provides a

two-step procedure for presenting administrative grievances. Step10

1 requires the prisoner to submit an administrative grievance at

the institutional level. T E XAS D EPARTMENT OF C RIMIN AL J USTICE

,

Administrative Dire ctive No. AD-03.82 (rev.1), Policy ¶ IV (Jan.

31, 1997). After an investigation, the unit grievance investigator

prepares a report and makes a recommendation to the final decision

maker for step 1 of the process, which may be the warden, assistant

warden, facility administrator, assistant facility administrator,

or health administrator. I d

. Step 2 permits the prisoner to

submit an appeal to the division grievance investigation with the

Institutional Division of the Texas Department of Criminal Justice.

After an investigation, the departmental grievance investigator

prepares a report and makes a recommendation to the final decision

maker for step 2 of the process, which is the director, dep uty

director, regional director or assistant director. Id

.

The grievance procedure takes app roximately 90 days to

exhaust. Prisoners are allowed 15 calendar days to file a step 1

grievance. T E XAS D EPARTMENT OF C RIMINAL J USTICE

, Administrative Directive

No. AD-03.82 (rev.1), Policy ¶ VI (Jan. 31, 1997). The response to

the step 1 grievance is due within forty days after receipt of the

grievance. I d

. The prisoner then has 10 days to submit an appeal.

Id

. The response to the step 2 grievance is due within forty days

after receipt of the prisoner’s appeal. Id

.

We ndell filed a step 1 grievance raising issues relating to

his Eighth Amendment claims on June 17, 1997, the same day that he11

claims he was beaten by Officer Asher. That grievance was timely

denied on June 24, 1997. On June 25, 1997, Wendell appealed that

determination, again raising his Eighth Amendment claims t h at

Officer Ashe r subjected him to excessive force and that certain

officials at his unit were deliberately indifferent to his right to

be free from exce ssive force at the hands of prison guards. Two

days later, on June 27, 1997, Captain Tarver conducted the

d isciplinary hearing which serves as the basis for Wendell’s

Fourteenth Amendment due process claims. Wendell did not file any

administrative grievances, either at the institution or w ith the

Texas Department of Criminal Justice specifically relating to those

claims. On July 28, 1997, and before the Texas Department of

Criminal Justice responded to Wendell’s step 2 grievance, Wendell

filed this lawsuit. Two days later, on July 30, 1997, the Texas

Department of Criminal Justice issued an order stating that

Wendell’s grievance had been “referred to Internal Affairs.” The

record does not reflect whether any further action was taken with

respect to Wendell’s step 2 grievance, but the grievance would have

been deemed denied as of the fortieth day after it was received by

the Texas Department of Criminal Justice, or no later than August

4, 1997. See Underwood , 1998 WL 476217 at *4.

From the foregoing facts, it is clear that Wendell filed this

suit before exhaus ting available administrative remedies. With

respect to his Eighth Amendment excessive force claims, those1 Texas law, unlike many other states, does not provide

that imprisonment is a legal disability capable of tolling the

applicable statute of limitations. S ee Gonzales v. Wyatt

, No. 97-

41074, 1998 WL 698866 at *3 (5th Cir. Oct. 23, 1998); T EX C IV

. P RAC

.

& R EM

. C ODE § 16.001 (amending definition of le gal disability in

12 cl aims were not exhausted until several days a fter Wendell filed

suit. With respect to his Fourteenth Amendment due process claims,

the record reflects that Wendell has never pursued administrative

remedies at all.

Wendell has not raised any valid excuse for failing to exhaust

available administrative remedies. Although he makes a conclusory

a llegation that the administrative procedures are inadequate, he

does not provide any facts to support that allegation, and it does

not appear from the record that any barrier was imposed to

Wendell’s expedient exhaustion of available remedies with respect

to his Eighth Amendment claims. Moreover, we note that the

dismissal of Wendell’s claims in this case will not cause any

injustice or render judicial relief unavailable. Wendell’s claims

were dismissed without prejudice to refiling. Wendell has now

exhausted administrative reme dies as to his Eighth Amendment

claims. Those claims are governed by Texas’ two-year statute of

limitations, which will not expire until at least April 1999, two

years after the earliest date that Wendell claims he informed the

named prison officials he was being threatened with excessive

force. Gonzales v. Wyatt , No. 97-41074, 1998 WL 698866 (5th Cir.

Oct. 23, 1998). 1 Wendell may pursue those claims in federal courtTexas to exclude imprisonment).

2 Wendell now claims that he is seeking only monetary

damag es. But Wendell’s conclusory and fleeting argument on this

point is blatantly inconsistent with his active pleadings in the

district court. Wendell made no request or attempt to amend those

pleadings in the district court, and we will not entertain such an

att empt on appeal. Wendell will be the master of his pleadings

when the suit is refiled, and may so limit his request for relief

if he desires at that time. See Marsh v. Jones , 53 F.3d 707 (5th

Cir. 1995) (state prisoner need not pursue administrative remedies

prior to filing suit for monetary damages if the applicable state

remedies are incapable of affording the prisoner monetary relief);

Texas Department of Criminal Justice, Administraive Directive No.

AD-03.82 (rev.1), Remedies ¶ II (Jan. 31, 1997) (“Requests for

disciplinary action against employees or for consequential or

punitive d amages will not be addressed through the grievance

procedures.”).

13 g:\opin\97-41291.opn immediately. Wendell has not pursued administrative remedies with

respect to his Fourteenth Amendment claims. Those remedies may be

e xhausted, however, within 90 days after the issuance of t his

opinion. Wendell’s due process claims are also governed by Texas’

two-year statute of limitations period, which will not expire until

at least June 1999, two years after the challenged disciplinary

hearing. Pete v. Metcalfe , 8 F.3d 214 (5th Cir. 1993). Provided

Wendell acts promptly, we conclude that there a re no apparent

barriers to the refiling of this action in federal district court

once he exhaus ts his administrative remedies as required by

§ 1997e. Given the statutory mandate of § 1997e, we must affirm

the district court’s dismissal of Wendell’s claims for failure to

exhaust administrative remedies prior to filing suit as required by

42 U.S.C.A. § 1997e. 214 g:\opin\97-41291.opn V. WENDELL’S MOTION FOR APPOINTMENT OF COUNSEL ON APPEAL

Wendell moved for appointment of counsel on appeal in the

district court. That motion was effectively denied by the district

court’s failure to rule, a decision we review for abuse of

discretion. J ackson v. Dallas Police Dep’t

, 811 F.2d 260, 261 (5th

Cir. 1986).

Absent exceptional circumstances, there is no automatic right

to appointment of counsel in a civil rights case. A kasi ke v.

Fitzpatrick

, 26 F.3d 510, 512 (5th Cir. 1994). The purely legal

issue presented for the Court’s consideration on appeal is neither

p eculiar nor complex. The record is sufficient, without further

development or argument of counsel, to support our decision in this

matter. For that reason, we find no error in the district court’s

refusal to appoint counsel for Wendell’s appeal.

VI. CONCLUSION

For the foregoing reasons, the district court’s dismissal of

Wendell’s § 1983 action without prejudice for failu re to exhaust

administrative remedies as required by 42 U.S.C.A. § 1997e is

AFFIRMED.