Manuel Plaisance v. Louisiana State Penitentiary, et al

Filing 511075522

Case: 09-30842

Document: 00511075522

Page: 1

Date Filed: 04/09/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-30842 S u m m a r y Calendar April 9, 2010 Lyle W. Cayce Clerk

M A N U E L PLAISANCE, P l a i n t if f- A p p e l la n t , v. LOUISIANA STATE PENITENTIARY; WARDEN BURL CAIN, LOUISIANA STATE PENITENTIARY, in His Individually and Official Capacities as Warden of Angola; WARDEN/DEPUTY DARREL VANNOY, in His Individual and Official Capacities as Deputy Warden of Angola Prison; WARDEN BLAINE LACHNEY, in His Individual and Official Capacities as Warden at Camp-C Unit, Angola Prison; COLONEL UNKNOWN PORET, In His Individual and Official Capacities as Colonel at Camp-C Unit, Angola Prison; SERGEANT ROBERT HAYES, in His Individual and Official Capacities as Sergeant at Camp-C Unit, Angola Prison; SERGEANT J THOMAS, in His Individual, and Official Capacities as Sergeant at Camp-C Unit, Angola Prison; COLONEL UNKNOWN SHARP, In His Individually and Official Capacities as Colonel, at Camp-D Unit, Angola Prison; MAJOR UNKNOWN RICHARDSON, In His Official Capacities as Major at Camp -D Unit, Angola Prison; SERGEANT UNKNOWN BATISTE, In His Individual and Official Capacities as Sergeant at Camp-D Unit, Angola Prison; COLONEL KENNETH DUPUIS, In His Individual and Official Capacity as Colonel at Camp-D Unit, Angola Prison; MAJOR UNKNOWN TUBBS, In His Individual and Official Capacities as Major at Camp-D Unit, Angola Prison; SERGEANT UNKNOWN DAVIS, In His Individual and Official Capacities as Sergeant at Camp-D Unit, Angola Prison; SERGEANT UNKNOWN GRIFFIN, In His Individual and Official Capacities as Sergeant at Camp-D Unit, Angola Prison; SERGEANT UNKNOWN WILSON, In His Individual and Official Capacities as Sergeant at Camp-D Unit, Angola Prison; SERGEANT C. MAYBERRY, In His Individual and Official Capacities as Sergeant at Camp-D Unit, Angola Prison; TRISH FOSTER, in Her Individual and Official Capacities as Warden's Designee at Angola Prison; WARDEN UNKNOWN LAMARTINERE, In His Individual and Official Capacities as Warden at Camp-D Unit, Angola Prison; LARRY JACKSON, Sergeant; UNKNOWN GROOM, Sergeant; K HENYARD, Major; UNKNOWN AMOND, Captain; UNKNOWN TURNER, Lieutenant, D e fe n d a n ts -A p p e lle e s .

Case: 09-30842

Document: 00511075522 Page: 2 No. 09-30842

Date Filed: 04/09/2010

A p p e a l from the United States District Court fo r the Middle District of Louisiana U S D C No. 3:08-CV-497

B e fo r e JOLLY, WIENER, and ELROD, Circuit Judges. P E R CURIAM:* M a n u e l Plaisance, Louisiana prisoner # 196480, proceeding pro se and in fo r m a pauperis (IFP), filed a complaint in the district court arguing that 23 p r is o n officials retaliated against him for filing an administrative grievance. T h e district court dismissed Plaisance's complaint for failure to exhaust a d m in is tr a t iv e remedies pursuant to 42 U.S.C. § 1997e. Plaisance now moves, p u r s u a n t to Baugh v. Taylor, 117 F.3d 197 (5th Cir. 1997), for leave to proceed IF P following the district court's order denying IFP and certifying that his a p p e a l is not taken in good faith. L o u is ia n a provides a two-step administrative remedy procedure for i n m a t e s , which they must use before filing suit in district court. La. Admin. C o d e tit. 22, pt. 1, § 325(A). Plaisance does not dispute that he failed to file a s e c o n d -s te p grievance, but he argues that he did not do so because he was u n a w a r e that he was required to complete both steps of the process before filing s u it. Plaisance's ignorance of the law, however, does not relieve him of his o b lig a tio n to comply with procedural requirements. See Fisher v. Johnson, 174 F .3 d 710, 714 (5th Cir. 1999) ("[I]gnorance of the law, even for an incarcerated p r o se petitioner, generally does not excuse prompt filing." (footnote omitted)). T h e Supreme Court has emphasized that the exhaustion required under § 1997e is "proper exhaustion" and that this standard is not met "by filing an untimely

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.

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Case: 09-30842

Document: 00511075522 Page: 3 No. 09-30842

Date Filed: 04/09/2010

o r otherwise procedurally defective administrative grievance or appeal." W o o d f o r d v. Ngo, 548 U.S. 81, 83-84 (2006) ("We hold that the proper exhaustion o f administrative remedies is necessary."). P la is a n c e also argues that the district court erred in dismissing his c o m p la in t with prejudice. This issue "involves legal points arguable on their m e r i t s (and therefore not frivolous)." Howard v. King, 707 F.2d 215, 220 (5th C ir . 1983) (internal quotation marks and citation omitted). Because Plaisance's a p p e a l is not entirely frivolous, Plaisance is entitled to proceed IFP on appeal, a n d his motion for IFP is granted. We may, however, address the merits of P la is a n ce 's claims at the same time as resolving the IFP issue if it is expedient to do so. See Baugh, 117 F.3d at 201-02 ("We are mindful that occasionally we h a v e blurred the distinction between motions to proceed IFP and appeals on the m e r it s . . . . Legitimate values, such as concerns for judicial economy and p ru d e n ce , justified the melding of the decisions." (footnote omitted)). P la is a n c e argues that the district court should have dismissed his c o m p la in t without prejudice to allow him to exhaust his administrative r e m e d ie s . We agree. See Wright v. Hollingsworth, 260 F.3d 357, 359 (5th Cir. 2 0 0 1 ). Accordingly, the judgment is affirmed as modified to reflect a dismissal w it h o u t prejudice of Plaisance's complaint. I F P GRANTED; AFFIRMED AS MODIFIED.

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