* Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-60204

Summary Calendar

 

BOBBY J. PINKNEY,

Plaintiff-Appellant,

versus

MALCOLM E. MCMILLAN,

Defendant-Appellee.

- - - - - - - - - -

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:95-CV-40-B-A

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July 17, 1996

Before SMITH, BENAVIDES and DENNIS, Circuit Judges.

PER CURIAM:*

Bobby J. Pinkney, a Mississippi state prisoner, filed this

civil rights action against the Sheriff and Board of Supervisors

of the county in which he was convicted, Governor Kirk Fordice,

Eddie Lucas, former interim Commissioner of the Mississippi

Department of Corrections (MDOC), Edward Hargett, former MDOC

superintendent, and MDOC. Pinkney alleged numerous constitutional

violations arising out of the conditions of his confinement at

the state penal institution in Parchman, Mississippi, and 
requested both injunctive and monetary relief. This appeal raises

the question of whether the district court abused its discretion

in dismissing Pinkney’s complaint for failing to comply with the

court’s order to exhaust administrative remedies.

The district court in the Southern District of Mississippi

dismissed the Sheriff and Board of Supervisors because they no

longer had control over the conditions of Pinkney’s confinement

and sua sponte transferred the complaint to the Northern District

of Mississippi, where Parchman is located.

A magistrate judge for the Northern District issued a 90-day

stay order, ordering Pinkney to make a good faith attempt to

exhaust the available administrative remedies. The magistrate

judge ordered Pinkney to file a certificate from the

Administrative Remedy Program (ARP) that he had exhausted his

administrative remedies within 90 days after the date of the

order or to file a statement that he had attempted to obtain the

certificate but had not been furnished with one within 150 days

of the date of the order. The order warned Pinkney that if he did

not reasonably and in good faith attempt to exhaust his

administrative remedies, his complaint would be dismissed with

prejudice. 

Pinkney submitted a request to the ARP, in which he

requested an administrative remedy for all of the issues listed

in his federal complaint. Pinkney’s request was denied because he

had requested a remedy for more than one incident in a single

complaint. 

Approximately 75 days after the issuance of the stay order,

Pinkney submitted to the court his request for an administrative
remedy, the denial of that request, and a sworn statement in

which he outlined the actions that he had taken. Pinkney stated

that he took no further action after his request was denied

because it would be “meaningless.” Pinkney construed the “one

issue, one complaint” rule to limit him to one request in the

program at a time; thus, he could not file a second request until

his first request had been resolved. Pinkney argued, then, that

it would take “years” to grieve all of his complaints because it

allegedly takes 90 days for a single complaint to be decided. 

Pinkney asked the court to consider that he had complied with the

court’s stay order so that his case could proceed or advise him

on how to pursue the case.

Over three months later, the district court issued an order

dismissing Pinkney’s complaint without prejudice for failure to

exhaust his administrative remedies because Pinkney had failed to

comply with the court’s order. Pinkney timely appealed. 

Pinkney contends that he made a good-faith effort to exhaust

his remedies, that he complied with the stay order by submitting

a statement detailing the steps that he had taken, and that he

sought help from the district court as to how to proceed with his

case. 

A district court may sua sponte dismiss an action for

failure to prosecute or to comply with any court order. Fed. R.

Civ. P. 41(b); McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th

Cir. 1988). A sua sponte dismissal by the district court

pursuant to Rule 41(b) must be upheld on appeal unless the court

determines that the district court abused its discretion in

choosing that sanction. Id.
Although there is no general exhaustion requirement for

§ 1983 cases, Congress created a limited exhaustion requirement

for adult prisoners bringing actions pursuant to § 1983 in the

Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C.

§ 1997e. Patsy v. Board of Regents of State of Florida, 457 U.S.

496, 507-08 (1982). If the court orders exhaustion of

administrative remedies, then § 1997e provides that the court may

continue the case for a period "not to exceed ninety days" to

require exhaustion. Rocky v. Vittorie, 813 F.2d 734, 736 (5th

Cir. 1987). A district court may dismiss a suit under § 1997e

after determining that the prisoner failed to make a good faith

attempt to exhaust his administrative remedies. Marsh v. Jones,

53 F.3d 707, 710 n.7 (5th Cir. 1995).

The stay order advised Pinkney that he could comply with the

order either by filing a certificate showing that he had

exhausted his administrative remedies or by filing a statement

that he had attempted, in good faith, to obtain the certificate

but had been unable. Pinkney timely submitted a statement to the

court detailing his good faith effort to secure the certificate

and requesting that the court lift the stay or further advise him

how to proceed. Pinkney’s submission complied with the order,

therefore, the district court’s dismissal of the complaint

without explanation was an abuse of discretion. 

Accordingly, we VACATE and REMAND.