Fontenot v. Global Expertise in Outsourcing

232 F. App'x 393

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 26, 2007
• Docket: 06-30383
• Status: Unpublished

Opinion

PER CURIAM: *

Marlin Fontenot, Louisiana prisoner # 093804, appeals both the district court’s dismissal of his civil rights complaint pursuant to 42 U.S.C. § 1997e(a) for failure to exhaust administrative remedies and the denial of his motion under Federal Rule of Civil Procedure 59. Fontenot asserts that the prison’s administrative grievance procedure was not available to him for purposes of § 1997e(a) because the prison’s inmate counsel substitutes refused to help him and he required their assistance due to his physical and mental disabilities. He contends that he did not find another inmate willing to help him until after the 90-day deadline had passed.

We review the dismissal of a 42 U.S.C. § 1983 complaint for failure to exhaust administrative remedies de novo. Days v. Johnson, 322 F.3d 863, 866 (5th Cir.2003). Assuming arguendo that the administrative process was not available to Fontenot while he could not find someone to assist him, he is not excused from the exhaustion requirement because he did not file a grievance once he found an inmate willing to help him, prior to filing a § 1983 suit. See Days, 322 F.3d at 867-68. He argues that it would have been futile to file a grievance at that time because it would have been untimely. Futility is not an exception to the exhaustion requirement. See id.

Fontenot also renews his argument that the district court should have amended its judgment under Federal Rule of Civil Procedure 59(e) to equitably toll the prescriptive period while he attempts to exhaust prison remedies. We hold that the statute of limitations should be equitably tolled during the pendency of the instant suit and any subsequent state administrative proceeding. See Clifford v. Gibbs, 298 F.3d 328, 333 (5th Cir.2002).

The judgment of the district court is AFFIRMED as MODIFIED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.