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. 08-30534

RENODE COLLINS

Plaintiff - Appellant

v.

RICHARD L STALDER, Secretary of Corrections; BURL CAIN, Warden;

LOUISIANA STATE PENITENTIARY; CURLY ALFRED, Correctional

Officer at Louisiana State Penitentiary; HEALTH CARE PROVIDER # 71; B

JOHNSON; HEALTH CARE PROVIDER # 17; HEALTH CARE PROVIDER

# 66; JOHN DOE, Doctor

Defendants - Appellees

Appeal from the United States District Court 

for the Middle District of Louisiana

USDC No. 3:06-CV-163

Before REAVLEY, WIENER, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Pro se Plaintiff-Appellant Renode Collins is an inmate at the Louisiana

State Penitentiary at Angola (“Angola”). In February 2006, Collins brought this

suit against a number of Angola officials and employees (“Defendants”) pursuant

United States Court of Appeals

Fifth Circuit

F I L E D

June 26, 2009

Charles R. Fulbruge III

Clerk
No. 08-30534

 An inmate may not bring a § 1983 action regarding prison conditions without 1

previously exhausting available administrative remedies. 42 U.S.C. § 1997e(a).

 We determined that Collins’s failure to respond to the district court’s notice that he 2

must include details about his pursuit of administrative remedies was not contumacious and

2

to 42 U.S.C. § 1983, claiming that prison officials disregarded medical

restrictions limiting the type of work he could do. The case took a series of

procedural twists and turns until April 2008 when the magistrate judge (“MJ”)

determined that the suit should be dismissed because Collins had not exhausted

the available administrative remedies before filing suit. When the MJ filed her

recommendation with the district court, the court failed to notify Collins. As a

result, he did not file objections within the requisite ten-day window. After that

window closed, the district court adopted the MJ’s findings and dismissed the

suit. Collins timely filed a notice of appeal. We reverse and remand for further

proceedings. 

I. FACTS AND PROCEEDINGS

The incident giving rise to Collins’s suit occurred in March 2005, following

which he properly filed a Step One grievance pursuant to prison procedure.

Almost a year later, in February 2006, Collins filed suit in the district court for

the Middle District of Louisiana while his grievances were still under

consideration and therefore unexhausted. Within a few months, this suit was 1

dismissed without prejudice because Collins had failed to describe the steps he

had taken to exhaust his administrative remedies, then failed to respond to the

district court’s notice that he must do so. On October 3, 2006, Collins’s Step Two

grievance was denied, concluding the administrative proceedings and satisfying

his exhaustion requirement. In June 2007, Collins’s suit was reinstated

following his successful appeal. Defendants filed their answer in December 2
No. 08-30534

may have resulted from his not having received that notice. Collins v. Stalder, 236 F. App’x

29, 30-31 (5th Cir. 2007) (summary calendar) (citing Berry v. CIGNA/RSI-CIGNA, 975 F.2d

1188, 1191 (5th Cir. 1992)).

 28 U.S.C. § 636(b). 3

3

2007. 

Defendants then moved for summary judgment on the basis of Collins’s

purported failure to pursue administrative remedies. The MJ agreed, and

recommended that the district court dismiss the suit. Notified by mail of the

MJ’s recommendation (the “First Recommendation”), Collins filed objections

during the statutory ten-day response period, asserting that indeed he had 3

sought administrative remedy through the prison grievance procedure. On the

basis of Collins’s objection, the district court rejected the MJ’s First

Recommendation and returned the case to the MJ for further proceedings. The

MJ then filed a supplemental recommendation (the “Second Recommendation”)

suggesting that Defendants be granted summary judgment because Collins’s suit

had been filed before he exhausted his administrative remedies. The district

court failed to notify Collins of the MJ’s Second Recommendation, however, so

— unsurprisingly — Collins filed no objections during the ten-day window. The

district court adopted the MJ’s Second Recommendation and granted summary

judgment to Defendants. Only then did Collins receive a notice by mail that the

district court had dismissed his case. Collins timely filed this appeal. 

II. ANALYSIS

The gravamen of Collins’s appeal is that the district court erred in

dismissing his suit without affording him the opportunity to object to the MJ’s

Second Recommendation. We agree.
No. 08-30534

Goodrum v. Quarterman, 547 F.3d 249, 255 (5th Cir. 2008); see also Douglass v.

4

United Servs. Auto Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).

Goodrum, 547 F.3d at 255. 5

Andrade v. Gonzales, 459 F.3d 538, 543 (5th Cir. 2006). 6

28 U.S.C. § 636(b); FED. R. CIV. P. 72(b). 7

Douglass, 79 F.3d at 1428-29, 1430; see also Nettles v. Wainright, 677 F.2d 404, 410 8

(5th Cir. Unit B 1982) (en banc), overruled on other grounds by Douglass, 79 F.3d at 1428 n.15.

 On May 7, 2008, the district court entered a revised order to correct a typographical 9

error. Judgment was entered on May 12.

4

A. Standard of Review

We review a grant of summary judgment de novo. In doing so, we review 4

the district court’s legal conclusions de novo, but its factual conclusions only for

clear error. As Collins is appearing pro se, we construe his brief liberally.

5 6

B. Magistrate Judge’s Recommendation

It is beyond dispute that when an MJ files a recommendation to the

district court on a matter dispositive to the proceedings, the district court must

notify the parties that they have ten days within which to file objections to the

MJ’s report. Notification of the parties is mandatory. 

7 8

At Angola, legal mail to prisoners is logged in by addressee, date, and

sender. Collins has submitted a copy of this log for the period in question. It

shows that no legal mail was received by Collins from the district court between

April 9, 2008 (the date of the MJ’s recommendation) and May 6, 2008 (the date

Collins received the district court’s ruling). We presume that there were no 9

irregularities in the prison’s mailroom procedures that month — and Defendants

allege none. We therefore conclude that the MJ’s Second Recommendation was

never sent to Collins. 
No. 08-30534

 See, e.g., McGill v. Goff, 17 F.3d 729, 731 (5th Cir. 1994), overruled on other grounds

10

by Kansa Reinsurance Co. Ltd. v. Congressional Mortgage Corp. of Tex., 20 F.3d 1362 (5th Cir.

1994); see also Johnson v. Johnson, 194 F.3d 1309, at *1 (5th Cir. 1999) (summary calendar)

(harmless error analysis required); Braxton v. Estelle, 641 F.2d 392, 397 (5th Cir. Apr. 3,

1981); but see Nettles, 677 F.2d at 410 (holding that “no limitation of the right to appeal . . .

and no limitation of the scope of appeal . . . shall result unless the magistrate informs the

parties that objections must be filed within ten days after the service of a copy of the

magistrate’s report is made upon them.”).

Had he been afforded the opportunity to object to the MJ’s Second Recommendation, 11

Collins would have been able to point out that, even if his suit was initially premature, by

April 2008 when the MJ made her determination, he was in full compliance with the statutory

requirements and had been for eighteen months. To then dismiss solely on the ground that

the very fact of Collins’s premature filing was fatal to his claim — even after he had satisfied

the § 1997e exhaustion requirement — would not only facilitate and encourage gamesmanship

by defendants, who could wait until an inmate’s statute of limitations has run before moving

for dismissal, but would also contravene our practice of dismissing premature filings without

prejudice to permit a plaintiff to exhaust. See, e.g., Clifford v. Gibbs, 298 F.3d 328, 331-32 (5th

Cir. 2002); Wright v. Hollingsworth, 260 F.3d 357, 358 n.2, 359 (5th Cir. 2001).

Furthermore, Collins’s case had been dismissed and then reinstated — for which

Collins paid a second filing fee — after he had exhausted his administrative remedies.

Moreover, that prior dismissal, which was without prejudice, was entered because of Collins’s

failure to note whether he had exhausted his administrative remedies and to give him an

opportunity to do so, if in fact he had not already.

5

Not having been notified by the court of the MJ’s Second Recommendation,

Collins had no opportunity to object to the MJ’s findings and recommendations.

Indeed, he was apparently unaware that the proceedings had been conducted

and completed until he was informed that the district court had granted

summary judgment against him. Given the presence of some confusion in the

case law as to whether harmless-error review is required when the court fails to

notify a party, we pretermit such an analysis here and instead hold that, on

10

the facts of this case, the district court’s failure to notify Collins of the MJ’s

Second Recommendation and the ten-day period for filing objections was

“harmful” per se. That decision was rendered on grounds that Collins had not 11
No. 08-30534

 Defendants raise a number of additional defenses in their brief, but we do not take 12

them up so that, on remand, the district court may consider them in the first instance. See,

e.g., Long v. McCotter, 792 F.2d 1338, 1345 (5th Cir. 1986).

 Venue in this case is proper in the Middle District of Louisiana, in which Angola is 13

located. See 28 U.S.C. § 1391(b).

6

been afforded an opportunity to rebut. Indeed, his successful rebuttal of a very

similar argument in his objection to the First Recommendation, supra, would

have indicated that the particular issue had been resolved (in his favor). 

12

C. Change of Venue

Collins also requests a change of venue to avoid future errors, noting that

he has twice had to pay filing fees because of the district court’s error and our

reversal at an earlier stage in this proceeding. We reject Collins’s request for a

change of venue, but instruct the district court to waive any further filing fees 13

or charges associated with the reinstatement of Collins’s lawsuit as a result of

this appeal.

III. CONCLUSION

We REVERSE the district court’s dismissal of Collins’s action and

REMAND this case to that court for further proceedings consistent with this

opinion.