* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10443

Summary Calendar

DANIEL JOSEPH RICHBOURG, JR

Plaintiff-Appellant

v.

DANNY R HORTON, RICHARD E WATHEN; OSCAR E PAUL; MR

MCGRATH; G ISENBERG

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 7:06-CV-184

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM:*

Daniel Joseph Richbourg, Jr., Texas prisoner # 609149, appeals the district

court’s judgment dismissing his 42 U.S.C. § 1983 retaliation claims for failure

to exhaust administrative remedies pursuantto 42 U.S.C. § 1997e(a). Richbourg

argues that it was not possible for him to exhaust administrative remedies

challenging both disciplinary proceedings and acts of retaliation by prison

officers.

United States Court of Appeals

Fifth Circuit

F I L E D

December 2, 2008

Charles R. Fulbruge III

Clerk
No. 08-10443

2

We review de novo a dismissal under § 1997e of a § 1983 complaint when

the dismissal is for failure to exhaust administrative remedies. Hutchins v.

McDaniels, 512 F.3d 193, 195 (5th Cir. 2007). The Prison Litigation Reform Act

(PLRA) requires prisoners to exhaust administrative remedies prior to filing a

§ 1983 complaint challenging prison conditions. 42 U.S.C. § 1997e(a); Woodford

v. Ngo, 548 U.S. 81, 88-89 (2006). Exhaustion must be proper, meaning that the

prisoner must comply with state procedural requirements, including filing

deadlines. Woodford, 548 U.S. at 90-91, 93-94.

The Texas Department of Criminal Justice Offender Orientation

Handbook provides a two-step procedure for presenting administrative

grievances. Step 1 requires the prisoner to submit an administrative grievance

at the institutional level within fifteen days of the incident. See Wendell v.

Asher, 162 F.3d 887, 891 (5th Cir. 1998)(overruled by implication on other

grounds by Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910, 920-21 (2007)). Step 2

permits the prisoner to submit an appeal to the division grievance investigation

with the TDCJ. Id. Generally, pursuant to prison regulations, only one

grievance can be filed every seven days, and only one issue can be raised in each

grievance.

Richbourg’s arguments that it was not possible for him to timely exhaust

administrative remedies regarding the retaliation claims are not supported by

the record. Richbourg does not challenge the correctness of the district court’s

findings that he was aware of his retaliation claims by December 9, 13, or 16, at

the latest. Richbourg provides no valid explanation for waiting for the

conclusion of the disciplinary proceedings to file a retaliation grievance.

Richbourg could have filed a retaliation grievance on December 13 and would

still have had time to file a timely grievance concerning the disciplinary action

seven days later.

Further, a review of the Texas Department of Criminal Justice Offender

Orientation Handbook reflects thatthe regulations provide for an exception that
No. 08-10443

3

includes disciplinary grievances to the seven-day rule. Thus, it appears that the

seven-day rule did not apply to Richbourg’s grievances concerning the

disciplinary proceeding. Additionally, based on Richbourg’s answers to the

questionnaire, alleged acts of retaliation also occurred during the disciplinary

hearing and in the manner in which his grievances were handled. Thus,

Richbourg could have filed grievances about those acts that occurred on a later

date and failed to do so.

The record reflects that Richbourg was not precluded from filing the

grievances as a result of the prison officers devising procedural requirements

designed to trap Richbourg and defeat his claims. Woodford, 548 U.S. at 102.

Richbourg admits that he made no attempt to file grievances with respect to the

retaliation claims. The district court did not err in dismissing the retaliation

claims for failure to exhaust administrative remedies. Insofar as Richbourg is

seeking injunctive relief, an inmate must exhaust his remedies irrespective of

the form of relief sought, injunctive or monetary. Wright v. Hollingsworth, 260

F.3d 357, 358 (5th Cir. 2001).

Richboug argues that the district court should have considered his

exhausted claims and that it erred in applying Heck v. Humphrey, 512 U.S. 477

(1994)to his claims concerning the disciplinary proceeding. “[T]he mandate rule

is a corollary of the law of the case doctrine, it . . . forecloses relitigation of issues

expressly or impliedly decided by the appellate court.” General Universal

Systems, Inc. v. Hal, Inc., 500 F.3d 444, 453 (5th Cir. 2007) (internal quotations

and citations omitted). This court affirmed the denial of Richbourg’s claims

involving the disciplinary action and the penalties imposed and remanded the

case for further consideration of only the retaliation claims. Id. Therefore,

under the law of the case doctrine, neither the district court nor this court could

reexamine Richbourg’s arguments concerning the disciplinary proceedings or the

penalties imposed as a result ofthose proceedings. See St. Paul Mercury Ins. Co.

v. Williamson, 332 F.3d 304, 309 (5th Cir. 2003).
No. 08-10443

4

The dismissal of the complaint for failure to exhaust is AFFIRMED.

Richbourg’s motions for the appointment of counsel and for discovery of

documents are DENIED.