Manuel Plaisance v. Burl Cain, Warden, et al

Filing 511081002

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Case: 09-30855 Document: 00511081002 Page: 1 Date Filed: 04/15/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-30855 S u m m a r y Calendar April 15, 2010 Lyle W. Cayce Clerk M A N U E L PLAISANCE, P l a in t i f f - A p p e l l a n t v. B U R L CAIN, WARDEN, LOUISIANA STATE PENITENTIARY; DARRYL V A N N O Y , Warden; SHIRLEY COODY, Warden; UNKNOWN BURGESKY, C a p ta in ; LOUISIANA STATE PENITENTIARY; SERGEANT ROBERT HAYES; M A J O R BRENTGESKY; WARDEN MACK SHAW; SERGEANT HILL; W A R D E N BLANE LACHNEY; WARDEN PORET, D e fe n d a n ts -A p p e lle e s A p p e a ls from the United States District Court fo r the Middle District of Louisiana U S D C No. 3:07-CV-934 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 in the district court a civil rights complaint arguing t h a t prison officials subjected him to an unreasonable risk of contracting a d e a d ly disease through the prison's assembly-line shave procedure. The 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 09-30855 Document: 00511081002 Page: 2 No. 09-30855 Date Filed: 04/15/2010 d e fe n d a n t s asserted nonexhaustion, and the district court dismissed Plaisance's c o m p la in t for failure to exhaust administrative remedies pursuant to 42 U.S.C. 1997e. Plaisance now moves for leave to proceed IFP following the district c o u r t 's order denying IFP and certifying that his appeal is not taken in good f a it h . L o u is ia n a provides a two-step administrative remedy procedure for in m a te s , which they are required to use before filing suit in district court. LA. A DMIN. CODE tit. 22, 325(A). Plaisance does not dispute that he failed to file a second step 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 . P la is a n c e 's ignorance of the law does not relieve him of his obligation to c o m p ly with procedural requirements. See Fisher v. Johnson, 174 F.3d 710, 714 (5 t h Cir. 1999). The Supreme Court has emphasized that the exhaustion r e q u ir e d under 1997e is "proper exhaustion" and that this standard is not met " b y filing an untimely or otherwise procedurally defective administrative g r ie v a n c e or appeal." Woodford v. Ngo, 548 U.S. 81, 83-84 (2006). 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 c e 's claims at the same time we resolve the IFP issue if it is expedient. S e e Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). P l a i s 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 . A dismissal without prejudice would have been appropriate in this case. See Wright v. Hollingsworth, 260 F.3d 357, 359 (5th Cir. 2001). 2 Case: 09-30855 Document: 00511081002 Page: 3 No. 09-30855 Date Filed: 04/15/2010 A c co r d in g ly , the judgment is affirmed as modified to reflect a dismissal without p r e j u d ic e of Plaisance's complaint. I F P GRANTED; AFFIRMED AS MODIFIED. 3

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