Wendell v. Asher

• Decision Date: 24 December 1998
• Docket Number: No. 97-41291,97-41291
• Citation: 162 F.3d 887
• Parties: Chandler WENDELL, Jr., Plaintiff-Appellant, v. Lloyd ASHER, Correctional Officer; William Pittman, Correctional Officer; Billye Forrest, Correctional Lieutenant; Ricky Tarver, Correctional Captain; Mike Nichols, Correctional Major; Tracey Porter, Classification Officer; Linda Dehoyos, Doctor; Timothy West, Senior Warden, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 887

162 F.3d 887

Chandler WENDELL, Jr., Plaintiff-Appellant, v. Lloyd ASHER, Correctional Officer; William Pittman,

Correctional Officer; Billye Forrest, Correctional

Lieutenant; Ricky Tarver, Correctional Captain; Mike

Nichols, Correctional Major; Tracey Porter, Classification

Officer; Linda Dehoyos, Doctor; Timothy West, Senior

Warden, Defendants-Appellees.

No. 97-41291

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Dec. 24, 1998.

Chandler Wendell, Jr., Beaumont, TX, pro se.

Appeal from the United States District Court for the Eastern District of Texas.

Before DUHE, DeMOSS and DENNIS, Circuit Judges.

DeMOSS, Circuit Judge:

Texas state prisoner Chandler Wendell, Jr. appeals the district court's dismissal of this civil rights action for failure to exhaust administrative remedies prior to bringing suit. We affirm.

I. RELEVANT FACTS

Proceeding pro se and in forma pauperis, Wendell filed a civil rights complaint pursuant to 42 U.S.C.A. § 1983 against Correctional Officer Lloyd Asher, Sergeant William Pittman, Lieutenant Billye Forrest, Captain Ricky Tarver, Major Mike Nichols, Classification Officer Tracey Porter, Prison Psychiatrist Dr. Linda Dehoyos, and Warden Timothy West, all prison officials at the Stiles Correctional Facility in Beaumont, Texas.

Wendell suffers from AIDS and is housed in a medical administrative segregation unit. On June 17, 1997, Officer Asher arrived to escort Wendell to an appointment with prison psychiatrist Dr. Linda Dehoyos. En route, Wendell requested that he be taken by the medical unit where he could obtain cough syrup for congestion. Officer Asher refused. When Wendell arrived at Dr. Dehoyos' office, he explained his physical symptoms to the doctor and again requested cough syrup. Dr. Dehoyos escorted Wendell to the medical unit for further examination.

While a prison nurse was taking Wendell's vital signs, Officer Asher came into the medical unit and, according to Wendell, became angry that Wendell had requested cough syrup again. Wendell claims that Officer Asher told the nurse to disconnect Wendell from the monitoring equipment and then told Wendell that he had "messed up." Officer Asher instructed Wendell to get up and return to his cell. Apparently Wendell hesitated, which angered Officer Asher more. Eventually, Officer Asher physically pulled Wendell to a standing position and began walking him to the door. Wendell claims that Officer Asher took two steps toward the door and then suddenly jerked up on the handcuffs which were fastened behind Wendell's back, forcing Wendell down over Asher's leg and to the floor. While Wendell was down, Officer Asher jumped on his back, grabbed his head and began banging it on the concrete floor. Wendell, who states that he is in the last stages of a terminal case of AIDS, claims he did not resist.

The entire incident was observed by Dr. Dehoyos and the prison nurse. Wendell claims that he sustained serious injury. Specifically, Wendell claims that his face was split open above the left eyebrow. Wendell also claims that Officer Asher jerked the handcuffs so hard that the right cuff was ripped off his hand, creating a two inch laceration. Finally, Wendell claims that his ribs were bruised.

After the incident, Officer Asher reported Wendell for a disciplinary infraction, claiming that Wendell had refused to respond to a repeated order to stand up. Defendant Captain Tarver investigated the disciplinary report. On June 27, 1997, there was a hearing on the merits of Officer Asher's disciplinary report against Wendell. At the hearing, Wendell claims that he and his representative were instructed to wait outside while Captain Tarver "coached" Archer on his testimony. Officer Archer then testified that Wendell had refused to stand up when Asher gave him a direct order in the medical unit. Wendell claims that the prison nurse gave conflicting testimony that Wendell did get up when asked. Captain Tarver found that Wendell had committed a disciplinary infraction, and imposed significant additional restraints on Wendell's confinement as a result. Wendell claims that the disciplinary report and subsequent hearing were merely a contrivance to conceal or distract attention from Officer Asher's misconduct towards Wendell, in violation of his federally protected right to due process.

Wendell also claims that the June 17, 1997 incident was not the first time that he had either been subjected to excessive physical force or threatened with the use of excessive force by correctional officers at the medical segregation unit. Wendell's Original Complaint describes at least two prior incidents of excessive force, which occurred in December 1995 and November 1996, and are apparently the subject of another pending civil rights case. Wendell claims that he requested a transfer to another facility in April 1997 because he feared for his safety in the wake of these prior incidents. Wendell alleges that defendant Porter, a classification officer at the unit, played a role in denying the April 1997 transfer request.

Wendell also describes at least two incidents in which he was threatened with physical force by correctional officers at the medical segregation unit. Both of those incidents occurred in May 1997. Wendell claims that the May 1997 threats of violence were either witnessed by or related to Sergeant Pittman, Lieutenant Forrest and Major Nichols, but that those officials took no action to protect him from further harm. Wendell also claims that he informed the prison psychiatrist, Dr. Dehoyos about the problem, but that the doctor expressed a reluctance to get involved in "security issues." Finally, Wendell claims that the warden, defendant West, had actual knowledge that medical segregation inmates were being physically abused by the guards and that West acquiesced in that unconstitutional treatment.

II. PROCEDURAL HISTORY

Wendell filed suit on July 28, 1997. Wendell's Original Complaint alleges Eighth Amendment claims for use of excessive force and deliberate indifference to his right to be free from the use of excessive force against Officer Asher, Sergeant Pittman, Lieutenant Forrest, Major Nichols, Dr. Dehoyos, Warden West, and the Classification Officer, Porter. Wendell's Original Complaint also alleges Fourteenth Amendment claims for deprivation of due process in the handling of the disciplinary hearing and subsequent disciplinary action against Captain Tarver and Officer Asher. Wendell's Original Complaint unambiguously seeks both monetary and injunctive relief. Specifically, Wendell asks that he be transferred from the facility where he is being held, that the federal courts enjoin all harassment and retaliation by prison officials until he is transferred, that his disciplinary record be expunged to eliminate any consequences from the tainted disciplinary proceedings, that he be returned to the more favorable classification status that he enjoyed prior to the disciplinary hearing, and finally, that the federal court award him actual and exemplary monetary damages against all defendants.

The district court referred the matter to a Magistrate Judge. The Magistrate Judge entered a Memorandum and Recommendation noting that Wendell's Complaint had been filed on July 28, 1997, only a short time period after the June 17, 1997 incident, and that Wendell had not alleged exhaustion of administrative remedies. Wendell filed objections, asserting that administrative remedies were exhausted as of July 30, 1997, two days after his Complaint was filed. The district court conducted a de novo review and then dismissed for failure to exhaust administrative remedies prior to filing suit.

III. THE STATUTORY EXHAUSTION REQUIREMENT

Title 42 U.S.C.A. § 1997e requires that a state prisoner exhaust available administrative remedies prior to filing suit in federal district court under 42 U.S.C.A. § 1983. The applicable version of § 1997e provides:

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.

42 U.S.C.A. § 1997e (Supp.1998). That provision plainly requires that administrative remedies be exhausted before the filing of a § 1983 suit, rather than while the action is pending.

Section 1997e was substantially amended by passage of the Prison Litigation Reform Act (PLRA), Pub.L. No. 104-134, § 803, 110 Stat. 1321, which took effect April 26, 1996. Prior to passage of the PLRA, § 1997e provided only that a federal district court had the discretion to require exhaustion when such a requirement would be "appropriate and in the interests of justice." The pre-PLRA version of § 1997e limited that discretion by including requirements that the available remedies be "plain, speedy, and effective," and that they meet certain minimum standards defined in the statute. See 42 U.S.C.A. § 1997e (1994). Even if the court made a decision to require exhaustion, the statutory procedure under the pre-PLRA version of § 1997e was to stay the case for up to 180 days to permit exhaustion. Thus, prior to April 1996, the statutory exhaustion requirement applicable to § 1983 suits by state prisoners was entirely discretionary, subject to significant limitations, and required merely a stay, rather than dismissal. Cf. Underwood v. Wilson, No. 97-40536, 151 F.3d 292, 1998 WL 476217 (5th Cir. Aug.14, 1998); Whitley v. Hunt, No. 97-40938, 158 F.3d 882, 1998 WL 740134 (5th Cir. Oct.23, 1998).

We recently held that the exhaustion requirement imposed by amended § 1997e is not jurisdictional. Underwood, 151 F.3d at 293-95, 1998 WL 476217 at * 2-3. Rather, the amended statute imposes a requirement, rather like a statute of limitations, that may be subject to certain defenses such as waiver, estoppel, or equitable tolling. See id. at 294-95, 1998 WL 476217 at * 3...