Harper v. Jenkin

179 F.3d 1311

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 1, 1999
• Docket: 98-8813
• Status: Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT 07/01/99 THOMAS K. KAHN No. 98-8813 CLERK Non-Argument Calendar ________________________

D.C. Docket No. CV-698-11

CHARLES HARPER,

Plaintiff-Appellant,

versus

DR. JENKIN, TOMMY REDDISH, LOUISE CASON,

Defendants-Appellees.

__________________________

Appeal from the United States District Court for the Southern District of Georgia _________________________ (July 1, 1999)

Before TJOFLAT, BIRCH and BARKETT, Circuit Judges.

PER CURIAM: Section 1997e(a) of the Prison Litigation Reform Act (PLRA) provides that

“[n]o action shall be brought with respect to prison conditions under [42 U.S.C. §]

1983 . . . , or any other federal law, by a prisoner confined in any . . . prison . . . until

such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).

This provision applies in this case because the prisoner, the appellant, filed his

complaint after the PLRA’s effective date.

Appellant is an inmate in the Georgia state prison system. He seeks both

monetary and injunctive relief on the ground that appellees, or one of them, violated

his Eighth (and Fourteenth) Amendment right to be free of cruel and unusual

punishment by refusing him needed medical treatment. Because appellant seeks such

relief, section 1997e(a) required that he exhaust his administrative remedies before

bringing suit.

Appellant has invoked the prison system’s administrative process; he has done

so by filing a grievance. His grievance has been denied, however, because it was

untimely. Appellant could appeal such denial (within the prison system); he

contends, however, that appeal would not be heard (because his grievance was

untimely). Given this circumstance, his argument continues, he has exhausted his

administrative remedies and, thus, the PLRA’s exhaustion requirement. We disagree.

2 As the district court noted in disposing of this case, Georgia State Prison Inmate

Grievance Procedure No. 503.1 allows the grievance coordinator to waive the time

period for filing a grievance if “good cause” is shown. Since appellant has not sought

leave to file an out-of-time grievance, he cannot be considered to have exhausted his

administrative remedies. If we were to accept appellant’s position – that the filing of

an untimely grievance exhausts an inmate’s administrative remedies – inmates, such

as appellant, could ignore the PLRA’s exhaustion requirement and still gain access to

federal court merely by filing an untimely grievance.

In sum, we affirm the district court’s dismissal of appellant’s complaint without

prejudice for failure to exhaust his administrative remedies.

AFFIRMED.