Hicks v. State of Mississippi

76 F. App'x 529

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 5, 2003
• Docket: 02-60891
• Status: Unpublished

Opinion

PER CURIAM. *

Jackie Hicks, Mississippi prisoner # 65534, appeals the district court’s dismissal with prejudice of her 42 U.S.C. § 1983 civil rights complaint for failure to exhaust administrative remedies, as frivolous, and for failure to state a claim for relief. 1 Hicks has also filed a motion for appointment of counsel.

Dismissals for failure to exhaust administrative remedies under 42 U.S.C. § 1997e(a) are reviewed de novo. 2 Hicks argues that she qualifies for an exception to the exhaustion requirement because the grievance procedure is inadequate and complicated. The administrative remedy exhaustion requirement of 42 U.S.C. § 1997e is mandatory regardless of the forms of relief sought or offered through administrative avenues. 3 This court has taken a strict approach to the exhaustion requirement. 4 Nevertheless, we have recognized that an exception to the exhaustion requirement exists for certain defens es such as waiver, estoppel, or equitable tolling. 5

The record reflects that Hicks did not comply with the Administrative Remedy Procedure (ARP) grievance process. Specifically, the ARP directed her to submit a complaint satisfying numerous prerequisites. Hicks never responded to this directive. Her argument that the grievance process was difficult is insufficient to warrant an exception to the exhaustion requirement. 6

Although the district court’s dismissal was proper, it is unclear whether the dismissal was with prejudice with respect to the exhaustion requirement. The court addressed the exhaustion requirement at length in its memorandum opinion of dismissal but it made no mention of this ground in the final judgment. However, the court’s final judgment did provide that the § 1915(e)(2)(b)(i) and (ii) dismissal was pursuant to the reasons contained in the memorandum opinion, which encompassed the exhaustion analysis. Because it is unclear whether the dismissal was with prejudice with respect to exhaustion, the judgment of the district court will be affirmed as modified to reflect that the dismissal for failure to exhaust is without prejudice. 7 Because this court is affirming the judgment as modified on this basis, the district court’s dismissal of Hicks’s complaint for failure to state a claim of relief need not be addressed. 8

Hicks argues that the district court erred in failing to permit her to amend her complaint. Hicks had filed a “motion for discovery” which the court denied and is properly construed as a Federal Rule of Civil Procedure 60(b)(6) motion. Hicks failed to file a notice of appeal from the court’s order denying her Rule 60(b) motion. Accordingly, this court lacks jurisdiction to review the motion. 9

For the first time on appeal, Hicks alleges that Arnold discussed the incident with other inmates in an attempt to incite retaliation against her and that the prison manual violated her rights under the Fourteenth Amendment. Hicks is precluded from raising these issues for the first time on appeal. 10

The judgment of the district court dismissing Hicks’s complaint is affirmed as modified to reflect a dismissal without prejudice for failure to exhaust administrative remedies. Hicks’s motion for appointment of counsel is denied.

* 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.

1 . 28 U.S.C. § 1915(e)(2)(B)(i), (ii); 42 U.S.C. § 1997e(a).

2 . Powe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999).

3 . Days v. Johnson, 322 F.3d 863, 866 (5th Cir.2003).

4 . Id.

5 . Wendell v. Asher, 162 F.3d 887, 890-91 (5th Cir. 1998).

6 . See Days, 322 F.3d at 866.

7 . See generally Wright, 260 F.3d at 359.

8 . See Sojourner T. v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992).

9 . See Fed. R.App. P. 4(a)(1)(A); Ledford v. Thomas, 275 F.3d 471, 475 (5th Cir.2001), cert. denied, 536 U.S. 927, 122 S.Ct. 2599, 153 L.Ed.2d 786 (2002).

10 . See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.1999).