IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30845

Summary Calendar

MARK HANNA,

Plaintiff-Appellant

v.

DEPUTY BRAD ANDERSON, Commission #1254; DEPUTY BONACCI, 

Commission #1156; DEPUTY GOLDEN, Commission #1207; DEPUTY BEAN, 

Commission #1290; SHERIFF OF BOSSIER PARISH; DEPUTY BOWLES, 

Commission #403; RODNEY BOYER; CHARLES GRAY,

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:12-CV-494

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Mark Hanna, former Louisiana prisoner # 132872/1387, appeals the 

district court’s summary judgment dismissal of his 42 U.S.C. § 1983 action, 

wherein he alleged that the defendants violated his constitutional rights by 

using excessive force. The district court based its ruling on Hanna’s failure to 

 

* 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

September 1, 2015

Lyle W. Cayce

Clerk

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exhaust his administrative remedies pursuant to the Prison Litigation Reform 

Act (PLRA), 42 U.S.C. § 1997e(a). In this court, Hanna raises the issues below 

and seeks en banc consideration of his appeal. 

First, Hanna challenges the summary judgment dismissal of his § 1983 

action for failure to exhaust. It is undisputed that Hanna did not exhaust his 

administrative remedies. Hanna, however, contends that he was excused from 

exhausting such remedies because he was released from the Bossier Parish 

Correctional Center (BPCC) about 16 hours after the alleged excessive force 

incident and re-incarcerated about five months later at a different facility. 

Additionally, he contends that he could not have filed his grievance before his 

release from the BPCC because, during the hours after the alleged incident, he 

did not have access to any writing materials or the inmate handbook; his copy 

of the inmate handbook was confiscated when he was released from the BPCC; 

he never returned to the BPCC; he filed his § 1983 complaint months later 

during his incarceration at a different facility; the language in the BPCC was 

written in such a way that led him to believe that released prisoners did not 

have to file a grievance; the remedy was thus unavailable to him even though 

he was generally aware that the remedy existed at the BPCC; and only a jury 

should decide whether exhaustion has occurred.

District courts may act as the factfinder and resolve disputed facts 

concerning exhaustion without the participation of a jury. Dillon v. Rogers, 

596 F.3d 260, 272 (5th Cir. 2010). Hanna’s claims are unavailing given that 

he received a copy of the inmate handbook, which contained the BPCC’s 

grievance procedure; was generally aware of the procedure, which included a 

section addressing discharged prisoners; and made no effort at all to file a 

grievance. See Williams v. Henagan, 595 F.3d 610, 618-19 (5th Cir. 2010); 

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Ferrington v. La. Dep’t of Corrs., 315 F.3d 529, 532 (5th Cir. 2002); Gonzalez v. 

Crawford, 419 F. App’x 522, 523 (5th Cir. 2011).

Hanna further contends that the exhaustion requirement is 

unconstitutional and that the BPCC exhaustion requirement is problematic 

because it vests prison officials with discretion to receive and process 

grievances when these officials have an incentive to undermine the grievance 

proceeding. We decline to consider these claims. See Finley v. Johnson, 243 

F.3d 215, 219 n.3 (5th Cir. 2001); Leverette v. Louisville Ladder Co., 183 F.3d 

339, 342 (5th Cir. 1999).

Second, Hanna challenges the denial of his discovery motions. He argues 

that he was entitled to the documents he sought; the denial of the motions 

constituted error; the magistrate judge exceeded the authority provided under 

Federal Rule of Civil Procedure 72 in ruling on the discovery motions; the 

denial of the motions was the result of judicial bias and constituted an abuse 

of discretion; and the defendants provided inadequate reasons for seeking to 

limit discovery. Because Hanna has not shown that the requested discovery 

would create a genuine dispute as to any material fact regarding the 

exhaustion issue, there was no abuse of discretion in the denial of his discovery 

motions. See Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010). Hanna’s 

claim regarding the magistrate judge’s consideration of his discovery motions 

is likewise unavailing. See FED. R. CIV. P. 72(a); 28 U.S.C. § 636(b)(1)(A);

Merritt v. Int’l Bhd. of Boilermakers, 649 F.2d 1013, 1018 (5th Cir. Unit A June 

1981).

Third, Hanna argues that, in denying his motion to change venue, the 

district court erroneously emphasized issues such as the convenience of the 

parties and determining whether there was another venue where his § 1983

action might have been brought rather than focusing on assisting him with 

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finding an unbiased tribunal. As proof of the bias against him, Hanna 

discusses various adverse rulings during his § 1983 proceedings. His 

assertions are insufficient to show an abuse of discretion. See Liteky v. United 

States, 510 U.S. 540, 555 (1994); Opiyo v. Musgrave, 574 F. App’x 491, 493 (5th 

Cir.), cert. denied, 135 S. Ct. 880 (2014).

Fourth, Hanna challenges this court’s denial of his petition for 

mandamus. Hanna presented his mandamus request in an earlier, original 

proceeding in this court. One panel of this court cannot overrule another 

panel’s decision “in the absence of an intervening contrary or superseding 

decision by this court sitting en banc or by the United States Supreme Court.”

Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999). As there 

has been no intervening Supreme Court decision or en banc ruling, Hanna 

cannot challenge the earlier panel’s ruling in his instant appeal.

Fifth, Hanna requests en banc consideration of his appeal. Because 

Hanna has not complied with this court’s rules regarding petitions for hearing 

en banc or satisfied the standard for an en banc hearing, his request is 

DENIED. See 5TH CIR. R. 35.2; FED. R. APP. P. 35(a), (b).

In light of the foregoing, the judgment of the district court is AFFIRMED.

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