                     REVISED AUGUST 1, 2002

                 UNITED STATES COURT OF APPEALS
                      For the Fifth Circuit



                             No. 01-30378



                         DAVID DREW CLIFFORD,

                                                Plaintiff-Appellant,


                                 VERSUS


                    RON GIBBS, Etc., Et Al.,

                                                          Defendants,

       JACK STRAIN, in his official and private capacity;
      GREG LONGINO, Captain, Assistant Warden, Director of
   Inmate Affairs; JEFFREY MAYO, Deputy; HILERY MAYO, Deputy,

                                                Defendants-Appellees.




          Appeal from the United States District Court
              For the Eastern District of Louisiana
                            July 10, 2002




Before JOLLY, SMITH, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

                            I.   BACKGROUND

     In April 1998, David Drew Clifford, a federal prisoner, filed
a § 1983 action against three federal marshals and against Saint

Tammany Parish officials alleging, among other things, that the

defendants failed to protect him from another prisoner, James

Brown, during his pre-trial confinement at Saint Tammany Parish

Jail in early 1998.1            Clifford sought declaratory relief and

compensatory and punitive damages.              He alleged in his complaint

that he had not filed an administrative grievance because no relief

could      be   provided.     The    district   court   dismissed   Clifford’s

complaint as legally frivolous and for failure to state a claim

under 28 U.S.C. § 1915(e)(2).

       On December 10, 1999, this Court granted Clifford’s motion to

proceed in forma pauperis on appeal, and vacated and remanded for

“further factual development” on Clifford’s failure-to-protect

claim insofar as it related to the state defendants.                We affirmed

the dismissal of his other claims.

       On remand, the district court appointed Clifford an attorney,

who moved to amend his complaint.             The amended complaint restated

the failure-to-protect claim and added a negligence claim.                 The

defendants filed a motion to dismiss, arguing that the court lacked

subject-matter jurisdiction over several supervisory defendants,

that there was insufficient process and service of process, and

that       Clifford   had   failed   to   exhaust   administrative    remedies



       1
       Clifford was transferred from Saint Tammany Parish Jail to
a federal prison in June 1998.

                                          2
available to him at Saint Tammany Parish Jail.

     Following oral argument, the magistrate judge concluded that

the defendants’ subject-matter jurisdiction argument was meritless,

and that their insufficiency of service of process argument was

moot.   However, it recommended granting the defendants’ motion to

dismiss for insufficiency of process against all fictitious named

defendants, and for failure to exhaust administrative remedies

against the other defendants.       The magistrate also made several

findings and conclusions:    (1) insofar as Clifford was attempting

to state an Eighth Amendment claim against the defendants, the law-

of-the-case    doctrine   barred   the   defendants’   contention   that

Clifford had failed to state a claim upon which relief may be

granted; (2) Clifford acknowledged his failure to comply with 42

U.S.C. § 1997e(a)’s administrative exhaustion requirement without

demonstrating that the dismissal of his claims would cause any

injustice or render judicial relief unavailable; and (3) any

“inequities” caused by dismissal, such as Clifford’s inability to

comply within applicable limitations periods, were “solely of his

own making.”

     Clifford filed objections to the magistrate judge’s report.

He argued that he was no longer able to exhaust remedies at Saint

Tammany Parish Jail because he had not been confined there since

May 1998, and that exhaustion was thus futile.         He also asserted

that he was not required to exhaust available administrative



                                    3
remedies because his claim was not an action with respect to

“prison     conditions,”     and    thus       it   was   outside    the   scope   of

§   1997e(a).      Finally,    he    contended        that   dismissal     would   be

impractical and inequitable.

      The    district      court     adopted         the     magistrate     judge’s

recommendation and dismissed Clifford’s failure-to-protect claim

“without prejudice for failure to exhaust administrative remedies.”

Clifford appeals here.



      II.    EXHAUSTION OF REMEDIES UNDER 42 U.S.C. § 1997e(a)

      Section 1997e(a), as amended by the Prison Litigation Reform

Act (PLRA), provides that “[n]o action shall be brought with

respect to prison conditions under section 1983 . . . . by a

prisoner confined in any jail, prison, or other correctional

facility until such administrative remedies as are available are

exhausted.”       Clifford had argued that § 1997e(a) did not apply to

his failure-to-protect claim because the claim did not concern

“prison conditions.”         However, since Clifford brought his claim,

the Supreme Court decided Porter v. Nussle, which held that “the

PLRA’s exhaustion requirement applies to all inmate suits about

prison    life,    whether    they    involve        general   circumstances       or

particular episodes, and whether they allege excessive force or

some other wrong.”      122 S. Ct. 983, 992 (2002).                 Porter squarely

precludes Clifford’s contention that his failure-to-protect claim


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is outside § 1997e(a)’s scope.

     Clifford    nonetheless    argues      that     the   district     court’s

dismissal of his failure-to-protect claim was erroneous because its

action is barred by the law-of-the case doctrine.              He begins by

noting that, in February 1999, the magistrate judge’s “primary”

rationale for recommending dismissal of his § 1983 complaint, which

was adopted by the district court, was that he had failed to

exhaust administrative remedies.          He then states that this Court

reversed   the   district   court’s       decision     “without   explicitly

addressing the exhaustion of administrative remedies argument.” He

contends that this Court’s remand for further factual development,

without    reference   to      the       administrative-remedies         issue,

“necessarily implies” that this Court “did not intend the action to

be dismissed under [the failure-to-exhaust] rationale.”

     The law-of-the-case doctrine “expresses the practice of courts

generally to refuse to reopen what has been decided.”                    United

States v. Lawrence, 179 F.3d 343, 351 (5th Cir. 1999).                “[W]hen a

court decides upon a rule of law, that decision should continue to

govern the same issues in subsequent stages in the same case.”

Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816

(1988).    However, “unlike res judicata, the law of the case

doctrine applies only to issues that were actually decided, rather

than all questions in the case that might have been decided, but

were not.” Alpha/Omega Ins. Servs., Inc. v. Prudential Ins. Co. of


                                     5
Amer., 272 F.3d 276, 279 (5th Cir. 2001).

      The relevant portion of our prior opinion in this case stated:

           The district court’s dismissal as frivolous of
           Clifford’s failure-to-protect claim against the
           state defendants, however, was premature and thus
           an abuse of discretion. To establish a failure-to-
           protect claim, an inmate must show that he was
           “incarcerated under conditions posing a substantial
           risk of serious harm and that prison officials were
           deliberately   indifferent    to   his   need   for
           protection.”

                When   the   jail   officials   simultaneously
           released Clifford and fellow inmate James Brown
           from lockdown for the second time, the two inmates
           had been in three fights, Brown had attacked
           Clifford immediately upon their release from
           lockdown the first time, and Clifford had allegedly
           informed Deputy Mayo that he was afraid of more
           trouble. No measures were allegedly taken to abate
           the risk that Brown would again attack Clifford
           upon their second simultaneous release from
           lockdown.   Accepting Clifford’s pleaded facts as
           true, his complaint has an arguable basis in both
           law and fact for both elements of an Eighth
           Amendment claim.

                Clifford’s motion for IFP is therefore
           GRANTED. . . . The district court’s dismissal of
           Clifford’s failure-to-protect claim as it relates
           to the state defendants is vacated and remanded for
           further factual development.

Clifford v. Gibbs, No. 99-30302, slip op. at 2-3 (5th Cir. Dec. 10,

1999) (citations omitted).     Clearly, despite Clifford’s argument,

our   prior   opinion   did   not   consider,   either    explicitly   or

implicitly, whether he had failed to exhaust his administrative

remedies. Rather, we only considered the District Court’s previous

conclusion that Clifford’s claim was frivolous.          Accordingly, the



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District Court’s conclusion here that            Clifford failed to exhaust

his administrative remedies is not barred by the law-of-the-case

doctrine.2

     Because Clifford’s claim is within the scope of § 1997e(a),

see Porter, 122 S. Ct. at 992, and because he failed to exhaust his

administrative remedies, see 42 U.S.C. § 1997e(a), the district

court’s dismissal of Clifford’s claim here was proper unless

Clifford establishes some other valid basis for failing to comply

with § 1997e(a). Citing McCarthy v. Madigan, Clifford asserts that

exhaustion is not required when it would cause “undue prejudice to

subsequent assertion of a court action.”              503 U.S. 140, 146-47

(1992).

     In McCarthy, the Supreme Court discussed a prior version of §

1997e, which it characterized as a statute “impos[ing] a limited

exhaustion requirement for [§ 1983] claim[s] brought by a state

prisoner     .   .   .   provided   that   the    underlying   state   prison

administrative remedy meets specified standards.” 503 U.S. at 150.

Because the plaintiff in McCarthy was a federal, rather than state,

prisoner, the Court recognized that § 1997e did not apply.             Thus,


     2
        Further, even if we had previously decided that Clifford’s
claim fell outside the scope of § 1997e(a)’s administrative remedy
exhaustion requirement, the Supreme Court’s intervening decision in
Porter v. Nussle would justify a different holding here.        See
Goodwin v. Johnson, 224 F.3d 450, 457-58 (5th Cir. 2000)
(explaining that we will depart from the law-of-the-case doctrine
when “controlling authority has since made a contrary decision of
the law applicable to such issues”).

                                       7
to determine whether the plaintiff prisoner could proceed with his

suit, the Court looked to the general administrative exhaustion

requirement      and   explained       three     “broad     exceptions”     to    its

application:       (1) when requiring exhaustion of administrative

remedies “may occasion undue prejudice to subsequent assertion of

a   court   action;”    (2)     when   the     administrative      remedy   may    be

inadequate “because of some doubt as to whether the agency was

empowered     to   grant      effective        relief;”     and    (3)   when     the

administrative body is shown to be biased.                 530 U.S. at 146-48.

      Clifford     urges   us    to    apply    McCarthy’s    “undue     prejudice”

exception to relieve him of his duty to exhaust administrative

remedies. However, the amendments to § 1997e(a) since McCarthy was

decided cast doubt on the continued validity of any of these

exceptions in cases covered by § 1997e(a).                In McCarthy, the Court

recognized that the prior version of § 1997e contained a “limited”

exhaustion    requirement       that    courts    had     “ample   discretion”     to

forgo.3     McCarthy, 503 U.S. at 149-50.            In contrast, the current

version at issue here provides no such discretion—exhaustion is

mandatory.     See 42 U.S.C. § 1997e(a) (“No action shall be brought

. . . until such administrative remedies as are available are


      3
        This prior version provided that, “if the court believes
that such a requirement would be appropriate and in the interests
of justice, [the court may] continue such case for a period of not
to exceed 180 days in order to require exhaustion of such plain,
speedy, and effective administrative remedies as are available.”
42 U.S.C. § 1997e(a) (amended by PLRA of 1995).

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exhausted.”).

     Moreover, to the extent that the McCarthy exceptions had any

application in § 1997e cases prior to its 1995 amendment, the

Supreme Court’s interpretation of § 1997e’s new language in Booth

v.   Churner    and   Porter     v.   Nessle   unambiguously    forecloses

application of such exceptions under the current statutory scheme.

See Booth, 121 S.Ct. at 741 n.6 (admonishing that, under the

amended version of § 1997e, an inmate must exhaust administrative

remedies “regardless of the relief offered through administrative

procedures”); Porter, 122 S.Ct. at 988 (“Once within the discretion

of the district court, exhaustion in cases covered by § 1997e(a) is

now mandatory.”)         Accordingly, we decline to apply McCarthy’s

“undue prejudice” exception.



                      III. EQUITABLE TOLLING

     The applicable limitations period for claims brought under 42

U.S.C. § 1983 is governed by state law.         Owens v. Okure, 488 U.S.

235, 249-50 (1989).       Accordingly, Louisiana’s one-year statute of

limitations     period     for   personal-injury   actions     applies   to

Clifford’s claim.     See Jacobsen v. Osborne, 133 F.3d 315, 319 (5th

Cir. 1998).     Because the assault at issue here occurred in early

April of 1998, the district court’s dismissal of Clifford’s claims

without prejudice actually operates as a dismissal with prejudice

because Clifford is barred from returning to federal court after

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exhausting his remedies because limitations has already run.                          See

Hatchet   v.    Nettles,    201     F.3d        651,    652-53      (5th    Cir.   2000).

Recognizing this, Clifford urges us to apply equitable tolling to

prevent his claim from becoming forever precluded.                         See Underwood

v. Wilson, 151 F.3d 292, 294-95 (5th Cir. 1998) (recognizing that

§ 1997e’s exhaustion requirement is not jurisdictional and may be

subject to certain defenses such as waiver, estoppel or equitable

tolling).

     In   a    factually   similar     case,           we   previously      granted   the

equitable      relief    Clifford     requests              here.      In    Wright    v.

Hollingworth, a prisoner brought a § 1983 action against a prison

nurse alleging deliberate indifference to his medical needs.                          260

F.3d 357, 358 (5th Cir. 2001).                  Relying on Booth, we held that

dismissal without prejudice for failure to exhaust administrative

remedies was proper. Id. However, because limitations had already

run on the defendant’s claim, he urged us to equitably toll

limitations during the pendency of his federal § 1983 action and

any additional state administrative proceedings.                      Id. at 359.      We

held this remedy to be appropriate.                Id.

     We   conclude      equitable    tolling           in    this   case    is   likewise

appropriate.     Accordingly, we grant Collin’s request to equitably

toll limitations on his § 1983 action during the pendency of this

action and during any additional state administrative proceedings.



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                          IV.    CONCLUSION

     In sum, we hold that Clifford’s suit is an action “brought

with respect to prison conditions.”    Thus, it is subject to

§ 1997e(a)’s administrative exhaustion requirements, and,

therefore, the district court’s dismissal of his suit without

prejudice was proper.   We also hold that limitations on his

action should be equitably tolled during the pendency of this

suit and any state administrative proceeding.

     For the foregoing reasons, the judgment of the district

court is AFFIRMED as MODIFIED.




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