IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 96-60450 Cons. w/ No. 96-60452 Summary Calendar
TRACY A. HANSEN, Plaintiff-Appellant,
versus
OFFICER WILLIAMS; GEANIE COLE; J.J. STREETER; ROGER COOK; EDWARD HARGETT; EDDIE LUCAS, Defendants-Appellees.
************************
DONALD MOORE; JERRY BARBER; OFFICER JOHN HAYWOOD; EDWARD HARGETT; EDDIE LUCAS, Defendants-Appellees.
________________________________________________
Appeal from the United States District Court for the Northern District of Mississippi ________________________________________________
December 4, 1996 Before GARWOOD, JOLLY and DENNIS, Circuit Judges.*
* Pursuant to Local Rule 47.5, the Court has determined that this opinion should not be published and is not precedent except GARWOOD, Circuit Judge:
Plaintiff-appellant Tracy Hansen (Hansen), an inmate at the
Mississippi State Penitentiary in Parchman, Mississippi, proceeding
pro se, brought these two separate civil rights suits in the
district court below against various prison officers and a fellow
inmate. A magistrate judge ordered that Hansen’s suits be stayed,
and required Hansen to make a good faith effort to exhaust his
administrative remedies pursuant to 42 U.S.C. § 1997e. Because the
prison’s Administrative Remedy Program allows a prisoner to process
only one claim at a time, Hansen was unable to process his cases.
Despite Hansen’s efforts, the district court ordered that the cases
be dismissed. Hansen appeals in each case. We have sua sponte
consolidated these cases for appellate disposition only. We now
vacate and remand in each case.
Facts and Proceedings Below
Hansen filed a civil suit in the district court below on April
7, 1994, claiming that various prison officers violated his civil
rights under 42 U.S.C. § 1983 (Hansen v. Moore; our No. 96-60452).
Hansen alleges that on March 25, 1994, while returning to his cell
after completing outdoor recreation, Officers Jerry Barber and John
Haywood physically assaulted him. Hansen claims that Sergeant John
Moore refused to investigate the alleged assault, and that all
three prison officers threatened Hansen with future assaults if he
under the limited circumstances set forth in Local Rule 47.5.4.
2 attempted to go to the inmate hospital. Hansen also alleges that
Superintendent Edward Hargett and Commissioner Eddie Lucas failed
to carry out their administrative responsibilities by showing
deliberate indifference and willful neglect when Hansen complained
of the March 25 assault and prior assaults.
On June 6, 1994, Hansen filed in the district court below (in
the same division as the April 7 suit) another section 1983 suit
against other officers of the same prison and an inmate, Geanie
Cole (Hansen v. Williams; our No. 96-60450). Hansen complains that
the officers named as defendants in his suit failed to protect him
from attacks by Cole and other inmates. Hansen also asserts that
he had attempted to use the prison’s Administrative Remedy Program
(Program) to resolve his claim, but that the prison administrators
process only one inmate grievance at a time and that the procedure
takes several months.
On November 4, 1994, a magistrate judge entered identical
orders in each suit, directing that, pursuant to 42 U.S.C. §
1997e(a)(1), the case be stayed for 90 days and that during the 90-
day period, Hansen make a good faith attempt to exhaust the
available administrative remedies found in the Program. Moreover,
the orders each provided that Hansen file, within 150 days, a
certificate from the Program stating that he had exhausted his
administrative remedies or a statement that he had attempted to
obtain such a certificate but had not been furnished with one.
3 Each order further provided that failure to file a certificate or
a statement within 150 days would result in dismissal of the case
with prejudice.
Soon thereafter, Hansen claims to have begun taking steps
towards complying with the orders. On November 8, 1994, he
allegedly wrote the director of the Program notifying the director
of the magistrate judge’s orders and requesting the director——as
the cases could not be processed——to issue a certificate indicating
that he had exhausted his administrative remedies. Hansen sent a
follow-up letter to the director on December 19, 1994, asking for
a status update on his cases. A Program administrator responded on
January 6, 1995, informing Hansen that only one request could be
processed through the Program at a time, and because he had other
grievances pending in the Program, the administrator would not
entertain either of the two cases.
On March 6, 1995, Hansen filed a motion to lift the 90-day
stay in the second filed of his two cases, Hansen v. Williams. In
the motion, Hansen described his correspondence with the Program
administrator and stated that, despite his good faith efforts, he
was having difficulties obtaining administrative relief in both
cases. The magistrate judge denied the motion on March 8, 1995.
Nothing further transpired in either case until on May 31,
1995, the district court, sua sponte, and without prior notice to
Hansen, entered orders in each case finding that Hansen had failed
4 to comply with the magistrate judge’s order and dismissed each case
without prejudice for failure to comply with an order of the court
and for failure to prosecute, pursuant to Fed. R. Civ. P. 41(b).
Hansen timely appeals in each case.1
Discussion
A district court may sua sponte dismiss an action for failure
to comply with a court order. Long v. Simmons, 77 F.3d 878, 879
(5th Cir. 1996). A sua sponte dismissal by the district court
pursuant to Fed. R. Civ. P. 41(b) will normally be upheld on appeal
unless the court determines that the district court abused its
discretion. Long, 77 F.3d at 879.
Although section 1983 does not impose any general exhaustion
requirement upon litigants, under 42 U.S.C. § 1997e of the Civil
Rights of Institutionalized Persons Act, district courts have
discretion to require an inmate to exhaust prison administrative
remedies prior to having his case heard in federal court.2 Rocky
1 Hansen filed timely motions for reconsideration in each case on June 8, 1995. He filed his notice of appeal in each on June 25, 1995. The district court denied the motions in each case on July 8, 1996. Hansen did not file a new notice of appeal in either case. The notices of appeal became effective on the denial of the motions for reconsideration. Fed. R. App. P. 4(a)(4). 2 On April 26, 1996, the Prison Litigation Reform Act of 1995 (Act) became law. See Pub. L. No. 104-134, 110 Stat.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 96-60450 Cons. w/ No. 96-60452 Summary Calendar
TRACY A. HANSEN, Plaintiff-Appellant,
versus
OFFICER WILLIAMS; GEANIE COLE; J.J. STREETER; ROGER COOK; EDWARD HARGETT; EDDIE LUCAS, Defendants-Appellees.
************************
DONALD MOORE; JERRY BARBER; OFFICER JOHN HAYWOOD; EDWARD HARGETT; EDDIE LUCAS, Defendants-Appellees.
________________________________________________
Appeal from the United States District Court for the Northern District of Mississippi ________________________________________________
December 4, 1996 Before GARWOOD, JOLLY and DENNIS, Circuit Judges.*
* Pursuant to Local Rule 47.5, the Court has determined that this opinion should not be published and is not precedent except GARWOOD, Circuit Judge:
Plaintiff-appellant Tracy Hansen (Hansen), an inmate at the
Mississippi State Penitentiary in Parchman, Mississippi, proceeding
pro se, brought these two separate civil rights suits in the
district court below against various prison officers and a fellow
inmate. A magistrate judge ordered that Hansen’s suits be stayed,
and required Hansen to make a good faith effort to exhaust his
administrative remedies pursuant to 42 U.S.C. § 1997e. Because the
prison’s Administrative Remedy Program allows a prisoner to process
only one claim at a time, Hansen was unable to process his cases.
Despite Hansen’s efforts, the district court ordered that the cases
be dismissed. Hansen appeals in each case. We have sua sponte
consolidated these cases for appellate disposition only. We now
vacate and remand in each case.
Facts and Proceedings Below
Hansen filed a civil suit in the district court below on April
7, 1994, claiming that various prison officers violated his civil
rights under 42 U.S.C. § 1983 (Hansen v. Moore; our No. 96-60452).
Hansen alleges that on March 25, 1994, while returning to his cell
after completing outdoor recreation, Officers Jerry Barber and John
Haywood physically assaulted him. Hansen claims that Sergeant John
Moore refused to investigate the alleged assault, and that all
three prison officers threatened Hansen with future assaults if he
under the limited circumstances set forth in Local Rule 47.5.4.
2 attempted to go to the inmate hospital. Hansen also alleges that
Superintendent Edward Hargett and Commissioner Eddie Lucas failed
to carry out their administrative responsibilities by showing
deliberate indifference and willful neglect when Hansen complained
of the March 25 assault and prior assaults.
On June 6, 1994, Hansen filed in the district court below (in
the same division as the April 7 suit) another section 1983 suit
against other officers of the same prison and an inmate, Geanie
Cole (Hansen v. Williams; our No. 96-60450). Hansen complains that
the officers named as defendants in his suit failed to protect him
from attacks by Cole and other inmates. Hansen also asserts that
he had attempted to use the prison’s Administrative Remedy Program
(Program) to resolve his claim, but that the prison administrators
process only one inmate grievance at a time and that the procedure
takes several months.
On November 4, 1994, a magistrate judge entered identical
orders in each suit, directing that, pursuant to 42 U.S.C. §
1997e(a)(1), the case be stayed for 90 days and that during the 90-
day period, Hansen make a good faith attempt to exhaust the
available administrative remedies found in the Program. Moreover,
the orders each provided that Hansen file, within 150 days, a
certificate from the Program stating that he had exhausted his
administrative remedies or a statement that he had attempted to
obtain such a certificate but had not been furnished with one.
3 Each order further provided that failure to file a certificate or
a statement within 150 days would result in dismissal of the case
with prejudice.
Soon thereafter, Hansen claims to have begun taking steps
towards complying with the orders. On November 8, 1994, he
allegedly wrote the director of the Program notifying the director
of the magistrate judge’s orders and requesting the director——as
the cases could not be processed——to issue a certificate indicating
that he had exhausted his administrative remedies. Hansen sent a
follow-up letter to the director on December 19, 1994, asking for
a status update on his cases. A Program administrator responded on
January 6, 1995, informing Hansen that only one request could be
processed through the Program at a time, and because he had other
grievances pending in the Program, the administrator would not
entertain either of the two cases.
On March 6, 1995, Hansen filed a motion to lift the 90-day
stay in the second filed of his two cases, Hansen v. Williams. In
the motion, Hansen described his correspondence with the Program
administrator and stated that, despite his good faith efforts, he
was having difficulties obtaining administrative relief in both
cases. The magistrate judge denied the motion on March 8, 1995.
Nothing further transpired in either case until on May 31,
1995, the district court, sua sponte, and without prior notice to
Hansen, entered orders in each case finding that Hansen had failed
4 to comply with the magistrate judge’s order and dismissed each case
without prejudice for failure to comply with an order of the court
and for failure to prosecute, pursuant to Fed. R. Civ. P. 41(b).
Hansen timely appeals in each case.1
Discussion
A district court may sua sponte dismiss an action for failure
to comply with a court order. Long v. Simmons, 77 F.3d 878, 879
(5th Cir. 1996). A sua sponte dismissal by the district court
pursuant to Fed. R. Civ. P. 41(b) will normally be upheld on appeal
unless the court determines that the district court abused its
discretion. Long, 77 F.3d at 879.
Although section 1983 does not impose any general exhaustion
requirement upon litigants, under 42 U.S.C. § 1997e of the Civil
Rights of Institutionalized Persons Act, district courts have
discretion to require an inmate to exhaust prison administrative
remedies prior to having his case heard in federal court.2 Rocky
1 Hansen filed timely motions for reconsideration in each case on June 8, 1995. He filed his notice of appeal in each on June 25, 1995. The district court denied the motions in each case on July 8, 1996. Hansen did not file a new notice of appeal in either case. The notices of appeal became effective on the denial of the motions for reconsideration. Fed. R. App. P. 4(a)(4). 2 On April 26, 1996, the Prison Litigation Reform Act of 1995 (Act) became law. See Pub. L. No. 104-134, 110 Stat. 1321 (1996). Section 803(d) of the Act amended 42 U.S.C. § 1997e(a) to now read:
“No action shall be brought with respect to prison conditions under section 1983 of this title, or any other
5 v. Vittorie, 813 F.2d 734, 736 (5th Cir. 1987). Section 1997e
provides district courts with the power to dismiss suits, following
a section 1997e continuance, if a prisoner fails to pursue his
administrative remedies in good faith. Id.; see also Marsh v.
Jones, 53 F.3d 707, 710 n.7 (5th Cir. 1995).
The record tends to show that, at the very least, Hansen has
attempted to comply with the magistrate judge’s order. In addition
to attempting to process his cases with the Program, Hansen wrote
two letters to the director of the Program fully informing the
director of the order’s exhaustion requirements and expressing his
(Hansen’s) desire to satisfy those requirements. Moreover, in his
motion to lift the 90-day stay, Hansen stated that he had made an
effort to resolve his cases through the Program, but that he was
unable to do so because of the Program’s prohibition on accepting
more than one claim at a time from the same prisoner.3 Hansen
repeated this information in his Fed. R. Civ. P. 59(e) motion to
Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”
42 U.S.C. § 1997e(a). On remand, the district court should consider to what extent, if any, the Act affects Hansen’s cases. 3 We note that Hansen filed this motion only in his suit against Officer Williams et al. However, because the motion discusses Hansen’s efforts to comply with the order with regards to both cases, we believe that Hansen’s failure to file a motion in his suit against Moore et al. is not necessarily controlling under the present facts. The suits were in the same division and identical orders in each were entered by the same magistrate judge and district judge.
6 alter or amend the judgment.
In dismissing Hansen’s cases without prejudice, however, the
district court apparently did not take into consideration any of
Hansen’s efforts to comply with the order. In its May 31, 1995
opinion and final judgment, the court made no mention of Hansen’s
motion to lift the 90 day stay or any of Hansen’s efforts described
in the motion. Likewise, in its order rejecting Hansen’s Fed. R.
Civ. P. 59(e) motion, the court summarily denied the motion without
offering any explanation for its decision.
For the above reasons, we conclude that the district court
erred in dismissing Hansen’s civil suits without addressing or
apparently considering whether he had reasonably and in good faith
complied with the order. The record indicates that, at minimum,
Hansen had taken some steps towards fulfilling the order’s
requirements. On remand, the district court should consider the
evidence which Hansen claims supports his contention that he made
a good faith attempt to comply with the order, and in particular,
those efforts mentioned in his motion to lift the 90-day stay.
Conclusion
The district court’s orders dismissing Hansen’s civil cases
are each VACATED and each cause is REMANDED.