Curry v. Puckett

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-60649 Summary Calendar

CURTIS B CURRY

Plaintiff - Appellant

v.

STEVE W PUCKETT, Superintendent, Mississippi State Penitentiary; JAMES ANDERSON, Superintendent, Mississippi State Penitentiary; CHRISTOPHER EPPS; ANN LEE; LETITIA ROACH; LAWRENCE HENDERSON; ROBERT ARMSTRONG; LAURENCE ELLIS; BILLY SMITH; WILLIE JACKSON; DEBORAH BELL; LINDA JONES; AMOS MITCHNER; JERRELL BOOKER; M/M JOHN DOE I; JOHN DOE II; RHONDA BILLINGS; SHIRLEY WHITE; LISA ECHOLS; DORIS HUDSON; DERRIA HILL; GLORIA FOSTER; JD STAFFORD; RICHARD NEWSKY; GENE ROWZEE; MARSHA LUSK; JOHN KEYS; GLORIA HOLLIS; JOAN ROSS; ETHEL CARLIZE; EDDIE CATES; JO P EDWARD; WANDA MITCHNER; PATTY LEGG; BARRY PARKER; THOMAS MCDANIEL; OLIVER JONES; LARRY KELLEY; WALTER BOOKER; ROGER PARKER; WILLIE BROWN; EZELL STANLEY; WAYNE WATSON; FRED O’BANNON; EUGENE CANNON; A FORREST

Defendants - Appellees

-------------------- Appeal from the United States District Court for the Northern District of Mississippi USDC No. 4:98-CV-185-B-A -------------------- May 8, 2000

Before KING, Chief Judge, and HIGGINBOTHAM and STEWART, Circuit Judges.

PER CURIAM:*

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-60649 -2-

Curtis B. Curry, Mississippi prisoner # 81606, attempts to

appeal the district court’s dismissal of his 42 U.S.C. § 1983

complaint for failure to exhaust administrative remedies. Curry

filed three motions to reconsider previous orders by the court

within ten days of entry of those orders, which would serve to

stay the running of the time to file a notice of appeal under

FED. R. CIV. P. 59(e). However, Curry’s final two motions raised

substantially the same claims on appeal, and the second one

therefore does not serve to stay the running of the time in which

Curry was required to file his notice of appeal. Ellis v.

Richardson, 471 F.2d 720, 720 (5th Cir. 1973). Consequently,

Curry’s notice of appeal is timely only as to the denial of his

third and last motion for reconsideration. This motion is

construed as a motion under FED. R. CIV. P. 60(b). See Eleby v.

American Med. Sys., 795 F.2d 411, 412 (5th Cir. 1986). Review is

for abuse of discretion. Latham v. Wells Fargo Bank, N.A., 987

F.2d 1199, 1203 (5th Cir. 1993).

Curry asserts that the district court erred in dismissing

his complaint for failure to exhaust his administrative remedies.

He maintains on appeal that he properly exhausted his remedies as

to two Rules Violation Reports that he received in prison, but he

failed to address this matter in the district court. Because the

district court never had an opportunity to rule on the issue,

this court cannot review it for error. See Leverette v.

Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999), cert.

denied, 120 S. Ct. 982 (2000). No. 99-60649 -3-

Curry contends that he made a good-faith attempt to complete

a challenge through the administrative remedy procedure, but that

the prison administration obstructed justice by not naming

Curry’s selection as respondent on the first step. Curry has not

shown that the administration was required to consider his wishes

on this matter or that his failure to complete the process was

the result of a good-faith effort to comply. Moreover, under the

current law, the district court does not need to determine

whether a prisoner has attempted a good-faith pursuit of his

administrative remedies. 42 U.S.C. § 1997e; Underwood v. Wilson,

151 F.3d 292, 294 (5th Cir. 1998), cert. denied, 526 U.S. 1133

(1999). His contentions are without merit.

Curry finally contends that he exhausted his remedies as to

one claim by appealing his reclassification. Curry was

reclassified as a result of an employee’s citation of Curry for a

sexual-misconduct violation. This write-up was the basis for

Curry’s failed challenge through the administrative remedy

procedure. Given that the challenged actions are intertwined,

Curry’s failure to exhaust his administrative remedies as to the

one count precludes review of the other. The district court’s

dismissal of Curry’s motion to reconsider the dismissal of his

complaint for failure to exhaust his administrative remedies is

AFFIRMED.