     Case: 11-31068   Document: 00512081152    Page: 1   Date Filed: 12/12/2012




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

                                                                  FILED
                                                             December 12, 2012

                                No. 11-31068                     Lyle W. Cayce
                                                                      Clerk

ANGELO A. GONZALEZ,

                                          Plaintiff - Appellee
v.

RONNIE SEAL, Lieutenant; BLANDON VERNON SMITH, Lieutenant;
DOUG BROOKS, CSM; JONATHAN TYNES, CSM; ROBERT C. TANNER,
Warden, in his individual capacity; DARRELL PETERS, Lieutenant; LARRY
WEARY, CSM, in his individual capacity; BRUCE FORBES, EMT, in his
individual capacity; JERRY P. MILLER, Assistant Warden, in his individual
capacity; MIKE HARRELL, in his individual capacity; JAMES M. LEBLANC,
Department of Corrections, Secretary, in his individual capacity; KEITH
BICKHAM, Deputy Warden; RONALD BRANCH, Assistant Warden,

                                          Defendants - Appellants



                Appeals from the United States District Court
                    for the Eastern District of Louisiana



Before JOLLY, JONES, and GRAVES, Circuit Judges.
PER CURIAM:
      In December 2009, Angelo Gonzalez, Louisiana prisoner # 114052, filed a
pro se, in forma pauperis civil rights complaint against employees of the
Louisiana Department of Corrections.      His original and several amended
complaints asserted that threats and harassment had occurred periodically since
July 2006; that he had suffered an excessive use of force in July 2006 and on
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November 11, 2009; that he had suffered a denial of medical care, a due process
denial resulting from an extended stay in lockdown status; and state law assault
and battery. He sought monetary damages and a declaratory judgment relieving
him from the unconstitutional prison practices. The defendants moved for
summary judgment, asserting that Gonzalez filed his federal lawsuit before
exhausting the prison grievance process in violation of the Prison Litigation
Reform Act (“PLRA”). The district court denied the motion. Because we find
that pre-filing administrative exhaustion is required, we REVERSE the district
court’s order and REMAND for entry of judgment dismissing the complaint.
                                        I.
      We have jurisdiction over interlocutory appeals pursuant to 28 U.S.C. §
1292(b). Our jurisdiction, however, “extends only to controlling questions of law”
based on the legal issues certified by the district court. Fisher v. Halliburton,
667 F.3d 602, 609 (5th Cir. 2012). The district court certified two issues, and we
accepted certification for interlocutory appeal. The issues certified to us are:
      (1) In light of the PLRA’s mandatory exhaustion requirement, and the
      Supreme Court’s decision in [Ngo], does the rule of Underwood still stand,
      which rule permits a district court to allow a prisoner’s claims to go
      forward, where he had not exhausted remedies prior to filing suit, but has
      since exhausted such remedies; and where dismissal (1) would be
      inefficient and (2) would not further either (a) the interests of justice, or
      (b) the Congressional purposes behind the PLRA?

      (2) Assuming that the aforementioned rule of Underwood is still extant,
      may the district court apply the “interests of justice” exception to the
      exhaustion-of-remedies requirement, as it did in this case, to find that
      dismissal need not occur, on the basis that (1) the state has completed its
      administrative review process and rejected the prisoner’s claims as
      meritless, and (2) the prisoner alleges continuous harm that the
      administrative review process has failed to address; without also
      determining under . . . § 1997e(c)(2) whether the prisoner’s claim is
      frivolous, malicious, or otherwise legally meritless?




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                                        II.
      We review the district court’s denial of summary judgment de novo.
Fisher, 667 F.3d at 609. Because we find that the PLRA pre-filing exhaustion
requirement is mandatory and non-discretionary, we do not reach the second
question.
      42 U.S.C. § 1997e(a) states that:
             No action shall be brought with respect to prison conditions
      under section 1983 of this title, or any other Federal law, by a
      prisoner confined in any jail, prison, or other correctional facility
      until such administrative remedies as are available are exhausted.

Id. There is no dispute that Gonzalez filed his section 1983 complaint before
exhausting the prison grievance process available to him. The district court,
however, declined to dismiss the complaint; instead exercising its discretion to
excuse Gonzalez’s failure to exhaust based on our decision in Underwood v.
Wilson, 151 F.3d 292 (5th Cir. 1998). In Underwood, we stated that “a non-
jurisdictional exhaustion requirement may, in certain rare instances, be
excused.” Id. at 296. Like Gonzalez, Underwood did not exhaust the available
administrative remedies until after he filed his section 1983 complaint. We
rejected a “strict” reading of 42 U.S.C. § 1997e(a); instead adopting a
discretionary test because “dismissing the suit and requiring [Underwood] to
refile is inefficient,” and mandatory pre-filing exhaustion “would not further the
interests of justice or the Congressional purposes behind the PLRA.”
Underwood, 151 F.3d at 296.
      Although Underwood was decided based on the text of section 1997e(a),
the decision predates the Supreme Court decisions in Woodford v. Ngo, 548 U.S.
81 (2006), and Jones v. Bock, 549 U.S. 199 (2007). Because Woodford and Jones
addressed the PLRA pre-filing exhaustion requirement, we must revisit our
decision in Underwood in the light of those decisions. See, e.g., Trizec Properties,


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Inc. v. U.S. Mineral Prods. Co., 974 F.2d 602, 604 n.9 (5th Cir. 1992) (“We are
bound to prior panel opinions absent en banc reconsideration or a superseding
contrary Supreme Court case . . . .”).
       In Woodford, the Supreme Court applied section 1997e(a) to a prisoner’s
federal complaint, filed after he missed prison grievance process deadlines. 548
U.S. at 87-88. The Court held that the prisoner had not properly exhausted his
administrative remedies and ordered the case dismissed. In doing so, the Court
concluded that “[e]xhaustion is no longer left to the discretion of the district
court, but is mandatory.”          Id. at 85.     “The PLRA attempts to eliminate
unwarranted federal-court interference with the administration of prisons, and
thus seeks to ‘affor[d] corrections officials time and opportunity to address
complaints internally before allowing the initiation of a federal case.’” Id. at 93
(quoting Porter v. Nussle, 534 U.S. 516, 525 (2002)) (footnote omitted).
Furthermore, in Jones, the Court instructed that, “There is no question that
exhaustion is mandatory under the PLRA and that unexhausted claims cannot
be brought in court.” Jones, 549 U.S. at 211 (citing Porter, 534 U.S. at 524). The
Court stated, “All agree that no unexhausted claim may be considered.” Id. at
219-20.
       After Woodford and Jones, there can be no doubt that pre-filing exhaustion
of prison grievance processes is mandatory. We thus hold that Underwood has
been tacitly overruled and is no longer good law to the extent it permits prisoner
lawsuits challenging prison conditions to proceed in the absence of pre-filing
administrative exhaustion.1 District courts have no discretion to excuse a
prisoner’s failure to properly exhaust the prison grievance process before filing


       1
           We note that our decision only applies in the case where the defendant moves to
dismiss for failure to exhaust administrative remedies. The issue of whether the court can
raise the exhaustion issue sua sponte is not before us. But, Jones states, “failure to exhaust
is an affirmative defense under the PLRA, and that inmates are not required to specially plead
or demonstrate exhaustion in their complaints.” 549 U.S. at 216.

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their complaint. It is irrelevant whether exhaustion is achieved during the
federal proceeding. Pre-filing exhaustion is mandatory, and the case must be
dismissed if available administrative remedies were not exhausted.
                                    III.
     Gonzalez admittedly did not exhaust his available administrative remedies
until after his section 1983 lawsuit was well underway. Under Woodford and
Jones, district courts have no discretion to waive the PLRA’s pre-filing
exhaustion requirement. Accordingly, the district court’s denial of summary
judgment is REVERSED and the case is REMANDED for entry of judgment
dismissing the complaint.
                                              REVERSED and REMANDED.




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