           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         September 8, 2009

                                       No. 08-30757                    Charles R. Fulbruge III
                                                                               Clerk

DAVID D. CLIFFORD, also known as Michael J. Coleman

                                                   Plaintiff-Appellant

v.

STATE OF LOUISIANA; KATHLEEN BLANCO, Governor;
LOUISIANA LEGISLATURE; CHARLES FOTI, Attorney General,
LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS;
RICHARD STALDER, Secretary, Department of Public Safety and Corrections;
N BURL CAIN, Warden;
#1 J DOE, Mailroom (LSP) Supervisor;
#2 J DOE, Judge, 20th Judicial District Court

                                                   Defendants-Appellees




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:07-CV-955


Before JONES, Chief Judge, and GARZA and STEWART, Circuit Judges.
PER CURIAM:*
       Louisiana prisoner David Clifford (“Clifford”) sued a variety of defendants
on two unrelated claims.          His first claim alleges that various defendants


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-30757

mishandled his prison mail in violation of the First Amendment. The second
challenges the constitutionality of the Louisiana Prison Litigation Reform Act,
which Clifford argues violates both the federal and state constitutions by
dismissing civil suits brought by prisoners who cannot pay the filing fees within
three years. The district court adopted the magistrate judge’s recommendations
and dismissed the first claim for failure to exhaust administrative remedies and
the second as frivolous. Clifford appeals. Because the district court incorrectly
found that Clifford failed to exhaust his administrative remedies, we vacate the
dismissal of that claim and remand but affirm in all other respects.
      First Amendment Claim
      The district court found that this claim was not administratively
exhausted because Clifford’s complaint acknowledged that at the time of suit he
had received no response from the first step of the administrative process. This
court reviews the district court’s dismissal for failure to exhaust administrative
remedies de novo. Carbe v. Lappin, 492 F.3d 325, 327 (5th Cir. 2007).
      Clifford filed an administrative grievance on October 1, 2007. Louisiana
regulations require the warden to respond to an inmate’s grievance within 40
days. La. Admin. Code tit. 22, § 325(G)(1)(a). The regulations state, “expiration
of response time limits shall entitle the inmate to move on to the next Step in the
process.” Id. § 325(G)(4)(a). Accordingly, after the 40 days expired, Clifford
attempted to move to the second stage of the administrative remedies process.
Clifford finally received a response to his initial grievance in January, which he
refused to sign. According to Clifford, he was told by prison officials that he
could not proceed to the second step of the grievance process because he did not
sign the response to the first.
      No procedural rule clearly requires a prisoner to sign an untimely first
stage grievance before proceeding to the second.        Instead, the regulations
indicate that the expiration of time limits, alone, enables an inmate to proceed

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to the next step in the grievance process. Clifford was thus entitled to proceed
to the second stage of the grievance process and the prison erroneously did not
allow him to do so. Under these circumstances, a prisoner’s administrative
remedies are deemed exhausted. See Powe v. Ennis, 177 F.3d 393, 393 (5th Cir.
1999) (involving failure of the state to comply with deadlines in the
administrative process).
      While the complaint may ultimately be appropriately dismissed on other
grounds, the district court erred in dismissing this claim for failure to exhaust
administrative remedies. We vacate and remand this portion of the district
court’s order.
      Louisiana Prisoner Litigation Reform Act
      In an unrelated claim, Clifford challenges the Louisiana Prisoner
Litigation Reform Act (“LPLRA”). Unlike the federal Prisoner Litigation Reform
Act (“PLRA”), the LPLRA will eventually dismiss a suit filed by an in forma
pauperis (“IFP”) prisoner who cannot pay filing fees within three years.
Compare La. Rev. Stat. 15:1186(B)(2)(c) (“If the prisoner does not pay the full
court costs or fees within three years from when they are incurred, the suit shall
be abandoned and dismissed without prejudice.) with 28 U.S.C. § 1915(b)(4) (“In
no event shall a prisoner be prohibited from bringing a civil action or appealing
a civil or criminal judgment for the reason that the prisoner has no assets and
no means by which to pay the initial partial filing fee.”). Clifford filed a medical
malpractice suit against various prison officials, which has been stayed and, he
asserts, will presumably be dismissed under the LPLRA. He alleges that this
dismissal violates the equal protection clause of the Fourteenth Amendment, the
due process clause of the Fourteenth Amendment, and the open access clause of
the Louisiana Constitution.
      The district court dismissed this claim as frivolous as a matter of law
under 28 U.S.C. § 1915(e)(2)(B)(I), which it may do where the claim lacks an

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arguable basis in law or fact. Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
This court reviews the dismissal of the suit as frivolous for abuse of discretion.
Id.
      The open courts provision of the Louisiana Constitution provides:
      All courts shall be open, and every person shall have an adequate
      remedy by due process of law and justice, administered without
      denial, partiality, or unreasonable delay, for injury to him in his
      person, property, reputation, or other rights.
La. Const. art. I, § 22. This provision provides the same protections as the
Fourteenth Amendment to the United States Constitution, and “the legislature
is free to restrict access to the judicial machinery if there is a rational basis for
that restriction” where no fundamental right is at stake. Safety Net for Abused
Persons v. Segura, 692 So.2d 1038, 1042 (La. 1997) (Louisiana Constitution); see
also Carson v. Johnson, 112 F.3d 818, 821 (5th Cir. 1997) (holding that the
Constitution requires waiving filing fees only where a fundamental interest is
involved).
      In the face of arguments identical to those made by Clifford now, a panel
upheld the constitutionality of the three-strikes provision of the PLRA in
Carson. Clifford’s right to recover for medical malpractice does not fall within
the fundamental interests recognized by the Supreme Court.             See Carson,
112 F.3d at 821 (divorce and termination of parental rights involve fundamental
interests; bankruptcy and welfare benefit determination do not).            Clifford
therefore has no constitutional right to a waiver of filing fees for his suit. Id.
      Carson disposes of Clifford’s equal protection claims as well. “Neither
prisoners nor indigents constitute a suspect class,” and this statute therefore
receives rational basis review. Id. at 821–22. Requiring the payment of filing
fees to “deter[] frivolous and malicious lawsuits, and thereby preserv[e] scarce
judicial resources, is a legitimate state interest,” and “prisoners have abused the
judicial system in a manner that non-prisoners simply have not.” Id. at 822.

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The LPLRA’s requirement that all inmates pay filing fees is rationally related
to a legitimate state interest and does not violate the Constitution. The district
court did not abuse its discretion by dismissing Clifford’s challenges to the
LPLRA as frivolous.
      Because the district court erroneously dismissed Clifford’s First
Amendment claims for failure to exhaust administrative remedies, that portion
of the order is VACATED and REMANDED, and the remainder is
AFFIRMED.




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