             IN THE UNITED STATES COURT OF APPEALS

                               FOR THE FIFTH CIRCUIT
                                           _______________

                                             m 00-30803
                                           _______________



                                         JERROD A. WILSON,

                                                                Plaintiff-Appellant,

                                                   VERSUS

                      MARIE BOISE; BURL CAIN; RICHARD L. STALDER,

                                                                Defendants-Appellees.


                                    _________________________

                             Appeal from the United States District Court
                                for the Middle District of Louisiana
                                  _________________________

                                             March 30, 2001

Before REAVLEY, SMITH, and DeMOSS,                      interfered with his mail in violation of his
  Circuit Judges.                                       constitutional rights. The magistrate judge
                                                        dismissed one claim of interference and the
JERRY E. SMITH, Circuit Judge:*                         retaliation claim for failure to exhaust admin-
                                                        istrative remedies. It dismissed the
   Jerrod Wilson, a Louisiana prisoner,                 remaining interference claim as frivolous.
appeals a judgment of dismissal of his claims           We affirm on a different ground.
against prison officials. He alleges that they
                                                                                I.
                                                            Wilson sued Mailroom Supervisor Marie
   *
                                                        Boise, Warden Burl Cain, and Secretary
     Pursuant to 5TH CIR. R. 47.5, the court has
                                                        Richard Stadler (collectively “prison
determined that this opinion should not be
                                                        officials”) for violation of his constitutional
published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R.          rights under 42 U.S.C. § 1983. Wilson
47.5.4.                                                 alleged that Boise violated his rights by
confiscating his mail addressed to an                    Amendment right to counsel, his Fourth
attorney in retaliation for his filing of                Amendment right to be free from
administrative grievances against her and                unreasonable searches and seizures, and the
that prison personnel withheld or mishandled             prison’s regulations. He prayed for
other pieces of mail. Wilson also complained             injunctive relief both against the rule and
that prison officials prevented him from                 against the alleged interference with his mail.
exhausting his administrative remedies by
placing his Administrative Remedy
Procedure forms on backlog pursuant to the                  The district court dismissed his complaint
grievance system’s “abuse of the procedure”              and adopted the magistrate judge’s order
rule. He requested declaratory and                       without considering the issues raised in these
injunctive relief, monetary damages, and a               motions. Wilson argues that the court
transfer to a different institution.                     (1) should have construed his “response to
                                                         show cause and for injunction” and his “tra-
   The magistrate judge dismissed Wilson’s               verse” as motions for leave to amend the
claims of retaliation and interference with le-          complaint, (2) erred in dismissing his mail-
gal mail for failure to exhaust administrative           tampering claims for failure to exhaust
remedies under 42 U.S.C. § 1997e(a).1 The                administrative remedies, and (3) that we
court dismissed his claim of interference with           should appoint counsel on appeal.
mail addressed to an attorney as frivolous
without reaching the question of exhaustion.2                                   II.
                                                            Wilson claims that the court should have
   Wilson then filed a “response to show                 construed his “response” and his “traverse”
cause and for injunction” and a “traverse,”              as motions for leave to amend the complaint.
complaining that the “abuse of the                       He did not request such leave from the
procedure” rule violated his First                       magistrate judge, but courts must grant leave
Amendment rights of free speech and                      to amend freely when justice so requires.
association. He raised a new claim that the              FED. R. CIV. P. 15(a).
defendants had violated his Sixth
                                                            We review failure to allow the
                                                         amendment for abuse of discretion. United
   1
     The statute reads: “No action shall be              States v. Riascos, 76 F.3d 93, 94 (5th Cir.
brought with respect to prison conditions under          1996). Rule 15(a) “circumscribes the
section 1983 of this title, or any other Federal         exercise of the district court’s discretion;
law, by a prisoner confined in jail, prison, or          thus, unless a substantial reason exists to
other correctional facility until such                   deny leave to amend, the discretion of the
administrative remedies as are available are             district court is not broad enough to permit
exhausted.” 42 U.S.C. § 1997e(a).
                                                         denial.” Shipner v. E. Air Lines, Inc., 868
   2
      Wilson claims, on appeal, that he sought an        F.2d 401, 407 (11th Cir. 1989) (dictum). In
attorney both in civil matters concerning prison         discerning the presence of said “substantial
conditions and in matters relating to his criminal       reason,” the district court may consider such
conviction. His administrative complaints,               factors as “undue delay, bad faith, dilatory
however, indicate that the mail in fact related to       motive on the part of the movant, repeated
civil matters.

                                                     2
failure to cure deficiencies by amendments             of his previous claims. An amendment to
previously allowed, undue prejudice to the             add them would be futile. Wilson does,
opposing party, and futility of amendment.”            however, claim, for the first time in his
Jacobsen v. Osborne, 133 F.3d 315, 318                 traverse, that the prison officials violated (1)
(5th Cir. 1998) (quoting In re Southmark               his Sixth Amendment right to counsel, (2)
Corp., 88 F.3d 311, 314-15 (5th Cir. 1996)).           prison regulations interfering with his legal
A denial “without any justifying reason,”              mail, and (3) his Fourth Amendment right to
however, “is not an exercise of that dis-              be free from unreasonable searches and
cretion; it is merely an abuse of that                 seizures.
discretion and inconsistent with the spirit of
the Federal Rules.” Lowery v. Tex. A & M                                        1.
Univ. Sys., 117 F.3d 242, 245 (5th Cir.                    The Sixth Amendment provides that “[i]n
1997) (quoting Foman v. Davis, 371 U.S.                all criminal prosecutions, the accused shall
178, 182 (1962)). An amendment is futile if            enjoy the right to . . . have the assistance of
it lacks legal foundation or was presented in          counsel for his defense.” U.S. CONST.
a prior complaint. Jamieson v. Shaw, 772               amend. VI. Although intrusion into the
F.2d 1205, 1208-11 (5th Cir. 1985).                    attorney-client relationship may constitute a
                                                       violation of the Sixth Amendment, cf.
                        A.                             Weatherford v. Bursey, 429 U.S. 545, 552-
   Rule 15(a) allows Wilson to amend his               53 (1977), the plain language of the Sixth
pleading once as of right before the                   Amendment protects the attorney-client
defendants filed a responsive pleading.                correspondence only in the criminal setting.
Wilson’s response to the magistrate judge’s            Wolff v. McDonnell, 418 U.S. 539, 576
order to show cause raised a new claim that            (1974). Wilson’s claims are civil. Thus,
prison officials interfered with his incoming          amending the complaint to include this claim
legal mail in February 2000. The defendants            would be futile, because the claim does not
had not filed a responsive pleading at that            have a valid legal basis. The magistrate
time, so the magistrate judge should have              judge did not abuse her discretion in failing
treated this motion as an amendment as of              to construe Wilson’s motion as doing so.
right.
                                                          Because the magistrate judge properly re-
    Because Wilson is entitled to only one             fused to consider this claim, it is in effect
amendment as of right, he needed to request            raised for the first time on appeal. We will
leave from the court to amend his complaint            not consider a new theory of relief so raised.
to raise new issues. A court may construe an           Leverette v. Louisville Ladder Co., 183 F.3d
issue raised for the first time in a traverse as       339, 342 (5th Cir. 1999), cert. denied, 528
a motion for leave to amend. Riascos, 76               U.S. 1138 (2000).
F.3d at 94. By extension, we treat new
issues raised in the “response to show cause                                 2.
and for injunction” as motions for leave to               Wilson’s claim that interference with his
amend, as well.                                        mail violated prison regulations also lacks a
                                                       legal foundation. A violation of prison
   In these motions, Wilson repeats several            regulations, without more, does not give rise


                                                   3
to a federal constitutional violation.                  exhausted his administrative remedies “when
Hernandez v. Estelle, 788 F.2d 1154, 1158               the time limits for the prison’s response set
(5th Cir. 1986). The magistrate judge need              forth in the prison Grievance Procedures
not have allowed amendment of Wilson’s                  have expired.” Id. at 295.
complaint to include this claim, because it
would have been futile to do so.                           Louisiana provides a three-step system of
                                                        review for grievances in which offenders
                       3.                               submit complaints to the warden, and prison
    Wilson claims, in his traverse, that the in-        officials have a prescribed number of days in
terference with his legal mail violated his             which to respond. The “abuse of the
rights under the Fourth Amendment. We                   procedure” rule provides that if an offender
need not reach this issue, because Wilson’s             submits multiple requests during the first
failure to exhaust his administrative remedies          stage of handling of his first request, that
requires us to dismiss the underlying claim.3           request will be processed, but the rest will be
                                                        backlogged for handling at the warden’s
                       III.                             discretion. Wilson believes that this rule is
   Wilson argues that the magistrate judge              unconstitutional and that the district court
erred in dismissing his claims for interference         erred in using it to find that he failed to
with his legal mail and retaliation for use of          exhaust.
the prison grievance procedures for failure to
exhaust administrative remedies under 42                                       A.
U.S.C. § 1997e(a). He believes that he                      Wilson argues that the “abuse of the pro-
could not exhaust such remedies because his             cedure” rule violates his constitutional right
claims were unconstitutionally backlogged               to file a grievance and receive a response.
pursuant to the “abuse of the procedure”                He further complains that the magistrate
rule. We review de novo the determination               judge did not address it. In fact, no such
of a prisoner’s failure to exhaust                      constitutional right exists. Section 1997e of
administrative remedies in a § 1983 action.             the Civil Rights of Institutionalized Persons
Powe v. Ennis, 177 F.3d 393, 394 (5th Cir.              Act, 42 U.S.C. § 1997e, authorizes states to
1999). Section 1997e(a) creates a                       construct prison grievance procedures that
mandatory burden on the district court to               district courts may require inmates to
dismiss all actions brought by prisoners who            exhaust before bringing civil rights suits.
have not exhausted administrative remedies.             Louisiana promulgated enabling legislation,
Underwood v. Wilson, 151 F.3d 292, 294                  LA. REV. STAT. ANN. §§ 15:1171-1177
(5th Cir. 1998).4 Moreover, a prisoner has              (West Supp. 1989), and the Louisiana
                                                        Department of Public Safety and Corrections
   3
                                                        set up the procedure. The United States
       See discussion infra part III.
                                                        District Court for the Middle District of
   4
     We have recognized an exception to the ex-
haustion requirement where a prisoner sues a pri-
son official exclusively for monetary damages           prisoner seeks both monetary and injunctive
and the prison grievance procedure does not             relief, the exhaustion requirement still applies.
provide that relief. McCarthy v. Madigan, 503           Arvie v. Stalder, 53 F.3d 702, 705-06 (5th Cir.
U.S. 140, 155 (1992). Where, as here, a                 1995).

                                                    4
Louisiana approved it. Martin v.                          to exhaust his administrative remedies,
Catalanotto, 895 F.2d 1040, 1042 (5th Cir.                because he did not appeal the prison’s
1990), abrogation on other grounds                        dismissal of his claim through the available
recognized by Marsh v. Jones, 53 F.3d 707                 procedures.
(5th Cir. 1995). Using internal prison                        The plain language of 42 U.S.C.
grievance procedures is not a right at all, but           § 1997e(a) precludes all actions brought by
a statutory requirement and procedural                    prisoners challenging prison conditions under
hurdle.                                                   § 1983 “until such administrative remedies as
                                                          are available are exhausted.” Before
    By failing to address Wilson’s claim, the             Congress amended that statute in 1997, it
magistrate judge implicitly dismissed it. The             read “exhaustion of such plain, speedy, and
magistrate judge had the discretion to                    effective administrative remedies as are
dismissed the claim as frivolous. Harper v.               available.” Underwood, 151 F.3d at 295
Showers, 174 F.3d 716, 718 (5th Cir. 1999)                (quoting 42 U.S.C. § 1997e(a)(1) (1994)).
(stating that a court may dismiss a prisoner’s            Congress obviously intended that courts
in forma pauperis civil rights claim as                   would enforce the exhaustion requirement
frivolous if it lacks an arguable legal basis).           strictly. We must dismiss Wilson’s claim.
                                                          Cf. id. (upholding the dismissal of a
                        B.                                prisoner’s claim, even though he had filed all
   Wilson failed to raise his retaliation claim           possible appeals through prison grievance
in his administrative remedy proceeding doc-              procedure, because he had not allowed
ument.5 Plainly, then, he has failed to                   officials time to respond before filing a claim
exhaust his administrative remedies. The                  with the district court).
district court did not err in dismissing the
claim.                                                                          D.
                                                             Wilson filed complaints alleging that mail
                       C.                                 tampering had occurred in July and August
   Wilson filed a complaint regarding the al-             1999 and February 2000. Because these
leged interference, in February 1999, with his            claims were backlogged under the “abuse of
mail to an attorney, and the prison officials             the procedure” rule, he did not receive a re-
dismissed this claim as untimely. Even if that            sponse through the three-step process. The
determination were in error, the district court           magistrate judge found that because these
properly dismissed the claim.6 Wilson failed              grievances were still being processed by pri-
                                                          son authorities, Wilson had failed to exhaust
   5
                                                          his administrative remedies.
     Wilson explains in his brief on appeal that
prison officials would not let him amend his                 Although the plain meaning of the statute
Administrative Remedy Procedure to add the
                                                          compels this result as well, a further policy
claim. He has not alleged that they had any duty
                                                          supports it. Wilson’s backlogged claims re-
to do so.
   6
     The district court dismissed this claim on the
basis that it was frivolous. We may affirm the            507 (5th Cir. 1999).
district court, however, on any basis supported
by the record. Berry v. Brady, 192 F.3d 504,

                                                      5
sult directly from his own litigiousness.             no issues we may reach on the merits. We
Were we to hold prison authorities to the             deny the motion.
standard deadlines on all claims, prisoners
could easily circumvent the requirement of              AFFIRMED.
exhaustion simply by filing voluminous
numbers of complaints, knowing that the
authorities would not be able to address all
of them in a timely fashion. Requiring
absolute exhaustion may seem harsh, but the
prison regulations themselves allow for
flexibility to avoid unjust results. The
grievance procedure states:

   Nothing in this procedure should serve
   to prevent or discourage an offender
   from communicating with the Unit
   Head [warden] or anyone else in the
   Department of Public Safety and
   Corrections. . . . All forms of
   communication to the Unit Head will
   be handled, investigated, and
   responded to as the Unit Head deems
   appropriate.

The magistrate judge did not err in
dismissing these claims for failure to exhaust
administrative remedies.

                     IV.
    Wilson filed a motion for appointment of
appellate counsel. A civil rights complainant
has no automatic right to the appointment of
counsel unless the case presents exceptional
circumstances. Freeze v. Griffith, 849 F.2d
172, 175 (5th Cir. 1988) (citing Ulmer v.
Chancellor, 691 F.2d 209, 212 (5th Cir.
1982)). A court may, however, appoint
counsel to represent an appellant proceeding
in forma pauperis in a civil action if the case
presents “exceptional circumstances.”
Santana v. Chandler, 961 F.2d 514, 515 (5th
Cir. 1992). Wilson’s case does not involve
exceptional circumstances; indeed, he raises


                                                  6
DeMoss, Circuit Judge, specially concurring:

   My review of this case indicates that the district court properly dismissed all of Wilson's claims.

I therefore concur in the result reached by the panel majority. I write separately to register my

disagreement with the panel majority's treatment of Wilson's claims premised upon incidents alleged

to have occurred in August 1999 and February 2000. I do not read the relevant Louisiana prison

regulations to authorize Louisiana prison authorities to indefinitely (or indeed permanently) postpone

consideration of a prisoner's grievance, and thus, that prisoner's access to the federal courts. In my

view, the panel majority's reading of the relevant regulations is inconsistent with the full text of the

controlling regulations, this Court's precedent, and constitutional principles guaranteeing access to

the federal courts.




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