* 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should not be published and is not precedent except under the limited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. 97-40391

Summary Calendar

 

LEROY ADAMS, JR.,

Plaintiff-Appellant,

versus

JOHN LAYNE, Employee, Michael Unit;

ASA O. JEFFCOAT, JR., Employee, 

Michael Unit, Defendants-Appellees.

- - - - - - - - - -

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:96-CV-742

- - - - - - - - - -

June 14, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Leroy Adams appeals the dismissal of his civil rights

complaint as frivolous, pursuant to 28 U.S.C. § 1915A(b)(1), and

for failure to exhaust administrative remedies, pursuant to

42 U.S.C. § 1997e. Adams argues that the district court erred when

it dismissed his case as frivolous, because he paid a partial

filing fee. Under the provisions of 28 U.S.C. § 1915A(b)(1), the

district court may dismiss a prisoner’s suit regardless of filing

fee status if it deems the complaint frivolous. Martin v. Scott,

156 F.3d 
2

578, 580 (5th Cir. 1998), petition for cert. filed (Dec. 22, 1998)

(No. 98-9113).

Adams argues that the district erred when it dismissed his

excessive-use-of-force claim for failing to exhaust administrative

remedies because such remedies are unavailable, given that he seeks

monetary relief only. The district court did not have the benefit

of Whitley v. Hunt, 158 F.3d 882, 887 (5th Cir. 1998), in which

this court clarified that under amended § 1997e, prisoners need not

pursue prison administrative remedies when they are seeking

exclusively monetary relief and there are no prison remedies

capable of affording such relief. Because Adams sought exclusively

monetary relief on his excessive-use-of-force claim, he may not

have been required to pursue administrative remedies before filing

suit. See Whitley, 158 F.3d at 887; Marsh v. Jones, 53 F.3d 707,

710 (5th Cir. 1995); McCarthy v. Madigan, 503 U.S. 140, 150-52

(1992). 

The dismissal of Adams’s excessive-use-of-force claim for nonexhaustion is vacated in part and the case remanded for the

district court to address the issue whether monetary relief is

available through the prison grievance procedure. See id. If

monetary relief is available, dismissal for non-exhaustion of

administrative remedies is appropriate. If, however, monetary

relief is unavailable, Adams should not be required to exhaust

administrative remedies before filing suit. See Whitley, 158 F.3d

at 885-87.
3

Adams argues that the district court erred when it dismissed

his substantive due process claim as frivolous. Adams does not

make the requisite allegation that the defendants violated his due

process rights for retaliatory reasons; nor has he shown a

favorable termination of the charge against him, especially

considering his assertion that he was found guilty. See Woods v.

Smith, 60 F.3d 1161, 1165 n.16 (5th Cir. 1995). The court did not

abuse its discretion in dismissing this claim. See Siglar v.

Hightower, 112 F.3d 191, 193 (5th Cir. 1997).

Adams also challenges the dismissal of his procedural due

process claims as frivolous. The record indicates that Adams

received the process he was due. See Sandin v. Conner, 515 U.S.

472, 474 (1995); Wolff v. McDonnell, 418 U.S. 539, 563-66 (1974).

The dismissal of this claim was not an abuse of discretion. See

Siglar, 112 F.3d at 193.

AFFIRMED IN PART and VACATED and REMANDED IN PART.