Ketzel v. Barnett

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 13, 2001
• Docket: 01-10108
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-10108 Conference Calendar

GARY NORMAN KETZEL,

Plaintiff-Appellant,

versus

WILLIAM BARNETT; ALFRED WILLSON; GARY PARKS; LESLIE WEST; JOHN DOE, DR.; E. CHASE; R. BLAIR; MOZETTA JOHNSON; LARRY BOND; FERNANDO DE LA ROSE; GLEN MEHARG; LESLIE HICKS; F. BAXTER; TEXAS TECH MEDICAL HEALTH SERVICES; TEXAS CORRECTIONAL INDUSTRIES; JOHN BENESTANTE; GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; WAYNE SCOTT, Director,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 2:00-CV-258 -------------------- June 13, 2001

Before WIENER, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

Gary Norman Ketzel (TDCJ # 743036) appeals the district

court’s dismissal of his pro se and in forma pauperis (IFP) 42

U.S.C. § 1983 complaint wherein he sought injunctive relief and

monetary damages for a variety of alleged civil rights

violations. Ketzel averred in his complaint that he had not

sought administrative remedies with respect to the bulk of his

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-10108 -2-

claims, but that he would “promptly submit both Step One and Step

Two grievances provided this honorable court serves me notice of

fulfilling this administrative remedy requirement.”

The district court dismissed the complaint as frivolous for

failure to exhaust administrative remedies. The district court

also denied a post-judgment motion by Ketzel wherein he asserted

that he had made a “grievious [sic] clerical error” when he

informed the court that he had not exhausted his administrative

remedies.

Ketzel has attached to his brief “exhibits” which he

asserts establish exhaustion of administrative remedies. We will

not enlarge the record on appeal with evidence not before the

district court. See Trinity Industries, Inc. v. Martin, 963 F.2d

795, 799 (5th Cir. 1992).

Title 42 U.S.C. § 1997e(a) provides that: “No action shall

be brought with respect to prison conditions under section 1983

of this title, or any other Federal law, by a prisoner confined

in any jail, prison, or other correctional facility until such

administrative remedies as are available are exhausted.”

A state prisoner’s mixed petition for both monetary and

injunctive relief is subject to § 1997e’s exhaustion requirement.

Whitley v. Hunt, 158 F.3d 882, 887 (5th Cir. 1998). We review a

district court’s dismissal of a prisoner’s complaint for failure

to exhaust de novo. See Powe v. Ennis, 177 F.3d 393, 394 (5th

Cir. 1999).

Given the record before the district court which included

Ketzel’s verified allegation that he had not exhausted his No. 01-10108 -3-

administrative remedies, Ketzel cannot show that the district

court erred by dismissing the complaint as frivolous for failure

to exhaust, or by denying the post-judgment motion. See Ali v.

Higgs, 892 F.2d 438, 440 (5th Cir. 1990)(district court may sua

sponte address obvious affirmative defenses to an IFP complaint);

cf. Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998)(dismissal

with prejudice based on failure to exhaust was appropriate in IFP

proceeding). The judgment of the district court is AFFIRMED.