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

                                                                            FILED
                                                                        December 28, 2007

                                       No. 05-10019                   Charles R. Fulbruge III
                                                                              Clerk

STEPHEN ALLARD

                                                  Plaintiff-Appellant
v.

DON ANDERSON, SHERIFF, GREENVILLE, TEXAS; CURTIS NEAL,
JAILER, HUNT COUNTY

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:02-CV-1698L


Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM:*
                                              I
       Stephen Allard was an inmate in the Hunt County Jail. During his time
there, he and other inmates were allegedly required to sleep and “lay” on the
floor, thus being exposed to raw sewage and pesticides on the floor. Additionally,
the cells were allegedly overcrowded, the prison officials held pretrial detainees
in cells with convicted inmates, and the female inmates resided in overcrowded


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-10019

cells where pesticides had been sprayed. On October 19, 2001, Allard was
transferred without notice from the Hunt County Jail. He discovered on October
23, 2001 that he had contracted hepatitis C. He also alleges that, as a result of
his exposure to pesticides in the jail, he was diagnosed with thyroid gland
problems and that he and other inmates may in the future have children with
birth defects. On August 9, 2002, he filed a complaint with the district court,
requesting injunctive relief and damages, but did not attempt to file a grievance
with Hunt County Jail until January 25, 2004, when he requested grievance
forms. On February 26, 2004, Defendants informed him that he could no longer
file grievances with the jail since he was no longer an inmate there.
      A magistrate judge heard the facts of the case and recommended that the
case be dismissed for failure to exhaust administrative remedies as required by
the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), and the district court
agreed, dismissing the case with prejudice.            The district court then rejected
Allard’s motion for leave to amend the pleadings on the basis of untimely filing
and failure to set forth new evidence of exhaustion of administrative remedies.
We review the case to determine whether the district court correctly dismissed
the case for failure to exhaust administrative remedies, whether the district
court properly denied Allard’s motion for leave to amend, whether we should
address Defendants’ statute of limitations argument, and whether the
magistrate judge erred in failing to recuse himself. We also address Allard’s
attempt to create a class action lawsuit on appeal.
                                             II
      We review a district court’s dismissal of a complaint for failure to exhaust
administrative remedies de novo,1 reviewing facts “in the light most favorable




      1
          Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004).

                                              2
                                        No. 05-10019

to the plaintiff”2 and dismissing a claim “if the plaintiff would not be entitled to
relief under any set of facts or any possible theory that he could prove consistent
with the allegations in the complaint.”3 Defendants argue that Woodford v. Ngo4
has answered the question of administrative exhaustion relevant to this case
and affirmatively shows that Allard failed to exhaust his administrative
remedies.       We do not agree that Ngo fully explains the exhaustion question
under these circumstances.             In Ngo, the Respondent was an inmate in a
California prison and was required to follow the state’s administrative grievance
process by completing a two-part form, wherein the prisoner described the
problem and requested redress within fifteen working days of its occurrence.
The prisoner could then request a three-step review.5 The Respondent in Ngo
claimed that prison officials refused to allow him to participate in various
religious activities, but he failed to lodge the complaint until six months after the
alleged participation restrictions.6           Jail officials rejected the grievance as
untimely and his appeals within the system did not succeed.7 The Supreme
Court found that Respondent had not exhausted his administrative remedies,
even though no further remedies were available to him. By failing to exhaust
properly his available remedies, Respondent had not met the exhaustion
requirement.8



      2
          Johnson v. Louisiana, 468 F.3d 278, 279 (5th Cir. 2006) (internal quotations omitted).
      3
          Id.
      4
          126 S.Ct. 2378 (2006).
      5
          Id. at 2383.
      6
          Id.
      7
          Id. at 2384.
      8
          Id. at 2385.

                                                3
                                      No. 05-10019

       Allard similarly knew of several of the grievances that he later complained
of – overcrowded cells, placement of pre-trial detainees with convicted inmates,
and unsanitary conditions that caused staph infections – in his suit. But Hunt
County Jail, unlike California’s prison system, has no time restrictions for filing
a complaint. Additionally, although Allard knew of the poor conditions before
he was transferred, he did not know of their substantial injurious effects, such
as thyroid problems and hepatitis C, prior to transfer. The exhaustion question
therefore turns on whether a prisoner who does not discover injuries incurred
by jail conditions until after he has been transferred and is then denied the
opportunity to file a grievance has failed to exhaust available administrative
remedies, or whether no administrative remedies were available to him to
exhaust.
       At the outset, we address the conditions that Allard was aware of while he
was in the Hunt County Jail, namely overcrowding, unsanitary conditions, and
housing of pre-trial and convicted detainees in the same cells. The jail’s internal
grievance process requires, for formal grievances, that inmates complete an
Inmate Grievance Form and that the Jail Administrator respond to the
grievance within fifteen days. The inmate may then request an appeal through
the Sheriff.      The procedure does not set forth any time restrictions on
complaints, but the form indicates that to bring a grievance, one must be an
“inmate” in the jail.9 Allard responded, when asked by the magistrate judge
through interrogatory, that his claims against the Hunt County Jail occurred
between January 1, 1985 and October 2001 – the time during which he was
periodically detained in the jail.         Allard could have complained of these
conditions in the approximate sixteen-year period when he was periodically an



       9
       The form states, “In the event an inmate wishes to appeal a decision of the grievance
procedure, the inmate shall request in writing a review of such decision by the Sheriff.”

                                             4
                                        No. 05-10019

inmate and fully eligible to use the grievance process, but he failed to do so and
therefore failed to exhaust the available administrative procedures in the jail.
       In the past, we have barred inmates from “evading the PLRA’s exhaustion
requirement by failing to comply with the prison grievance system.”10 Although
Allard’s failure to raise a complaint was perhaps not intentional, it did not fall
within one of the narrow exceptions where an inmate is excused for failing to
timely exhaust administrative remedies.11 The district court did not err in
dismissing the claims for conditions and injuries that Allard knew of during his
time as an inmate.
       Although Allard failed to exhaust some of his claims, this does not end our
inquiry.12 We must review the district court’s dismissal of Allard’s claims for
injuries that he discovered post-transfer.
       For the injuries that Allard did not discover until after his transfer from
Hunt County Jail, Allard had no available administrative remedies to exhaust;
any requirement that he exhaust pursuant to the PLRA13 would be futile.
       Even when administrative relief such as monetary damages is
unavailable, prisoners must under certain circumstances pursue any available
administrative processes before bringing suit in federal court.14 In other words,
when an administrative process is available but the administrators providing
the process do not have the authority to grant the sole remedy requested, a

       10
            Days v. Johnson, 322 F.3d 863, 867 (5th Cir. 2003).
       11
            Id. at 868.
       12
         See, e.g., Johnson v. Johnson, 385 F.3d 503, 512 (5th Cir. 2004) (finding that some
but not all of plaintiff’s claims should be dismissed for failure to exhaust).
       13
            42 U.S.C. § 1997e (a) (“No action shall be brought with respect to prison conditions
. . . until such administrative remedies as are available are exhausted.”).
       14
         Ngo, 126 S. Ct. at 2382-83 (citing Booth v. Churner, 532 U.S. 731, 739 (2001) (“a
prisoner must now exhaust administrative remedies even where the relief sought--monetary
damages--cannot be granted by the administrative process”)).

                                               5
                                          No. 05-10019

prisoner must still exhaust that process prior to bringing suit.15 Of course,
“where the relevant administrative procedure lacks authority to provide any
relief or to take any action whatsoever in response to a complaint,”16 we consider
administrative remedies to be unavailable.
       Congress, by broadening the exhaustion requirement in the PLRA, aimed
to ensure that prisoners could not avoid the requirement by purposefully seeking
remedies through court that were unavailable through the administrative
process.17 Additionally, where we have required pursuit of “unavailable” relief
through an available process, prisoners were aware of the alleged injuries
underlying their claims when the administrative process was available to
them.18 Neither of these conditions applies in the present case. Allard was not
attempting to avoid the exhaustion requirement by bringing suit. Rather, he
discovered that he had contracted hepatitis C several days after his transfer
from the Hunt County Jail. At another undefined post-transfer date, he was also
diagnosed with thyroid problems allegedly caused by his exposure to pesticides
while sleeping on the jail floor. While he was an inmate – when he could have
availed himself of administrative remedies – he was unaware of these injuries.
       The administration of the Hunt County Jail lacked any authority to hear
Allard’s hepatitis and thyroid complaints after he was transferred. Although
typically we would require Allard to exhaust his remedies through Hunt County
Jail’s administrative processes before bringing suit in federal court,19 the Inmate


       15
            See Booth, 532 U.S. at 736, 741.
       16
            Id. at 736.
       17
            See, e.g., Booth, 532 U.S. at 741.
       18
        See, e.g., id. at 734-35 (Appellant filed a grievance but failed to take advantage of the
administrative appeal that was available following denial of the grievance).
       19
       See Jones v. Bock, 127 S.Ct. 910, 914 (2006) (“Key among [the requirements of the
PLRA] was the requirement that inmates complaining about prison conditions exhaust prison

                                                 6
                                        No. 05-10019

Grievance Form made it clear that the administrative process was available only
to “inmates.”20 The jail’s later rejection of Allard’s attempt to exhaust verifies
that the entire administrative process was unavailable to Allard once he was no
longer an inmate. Allard was not an inmate when he discovered his alleged
hepatitis and thyroid problems and therefore had no administrative processes
available to him through Hunt County Jail. Nor was a remedy available through
the Texas Commission on Jail Standards.21 We REVERSE the district court’s
dismissal of his complaint for failure to exhaust administrative remedies with
respect to his hepatitis and thyroid problems discovered after Allard’s transfer
from the Hunt County Jail.
                                               III
       On November 22, 2004, the district court entered judgment against Allard,
finding that he had failed to exhaust his administrative remedies under the
PLRA and dismissing his claims. Allard filed his notice of appeal on December
22, 2004, and on February 25, 2005, Allard filed a motion for leave to amend his
pleadings with the district court. It is well established that once a party files a
notice of appeal, the district court no longer has jurisdiction over the case.22


grievance remedies before initiating a lawsuit.”).
       20
        The form states, “In the event an inmate wishes to appeal a decision of the grievance
procedure, the inmate shall request in writing a review of such a decision by the Sheriff.”
       21
          See Jones, 127 S.Ct. at 923. (“The level of detail necessary in a grievance to comply
with the grievance procedures will vary from system to system and claim to claim, but it is the
prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.”).+
The Hunt County Jail’s requirements make no reference to remedies that a prisoner must
pursue through the Texas Commission on Jail Standards. Furthermore, although “[t]he
commission shall keep an information file about each complaint filed with the commission that
the commission has authority to resolve,” “[t]he commission is not required to keep an
information file about a complaint to the commission from or related to a prisoner of a county
or municipal jail.” TEX. GOV’T CODE § 511.0071(d).
       22
         See, e.g., Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per
curium); Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 578 (5th Cir.
1996) (“Generally, a notice of appeal divests the district court of jurisdiction over the judgment

                                                7
                                           No. 05-10019

Because Allard filed his motion to amend more than two months after his
appeal, the district court properly denied the motion. Defendants also argue
that Allard’s original claim should be barred by the statute of limitations. The
magistrate judge did not address this claim; we therefore do not review the
issue.
                                                 IV
         Allard raises for the first time on appeal his argument that the magistrate
judge should have recused himself in the case below, alleging that “it is obvious”
that the judge was “prejudiced” against Allard because Allard proceeded pro se
and was indigent. Allard fails to show good cause for why he failed to request
recusal through the filing of an affidavit with the district court, and he does not
allege exceptional circumstances that give us reason to consider these issues.
We therefore do not consider the issue of recusal.
                                                 V
         Allard, also for the first time on appeal, attempts to certify a class action
claim on behalf of “the inmates at Hunt County Jail, past, and present,” alleging
that the court should have held a class certification hearing to address human
waste in the jail cells and blocks, “years of illegal overcrowding,” and
“misapplication of pesticides.” He also alleges that “100s of detainees were
placed in the same cells with convicted persons” and that his family and “many
others” are concerned about possible birth defects caused by the pesticide
application.
         We review a court’s decision to reject class certification for abuse of
discretion and its legal determinations regarding certification de novo.23 When
Allard submitted his pleadings to the district court he did not officially request



or order that is the subject of the appeal.”).
         23
              Allison v. Citgo Petroleum Corp., 151 F.3d 402, 408 (5th Cir. 1998).

                                                  8
                                         No. 05-10019

class certification. Although he included language indicating that he was
attempting to bring the claim on behalf of himself and other prisoners, and in
vague terms argued that the class was numerous and had common claims, he
failed to demonstrate how his claims were typical of the remainder of the class
and that he would adequately represent the class, as well as how the class action
would be superior to individual suits or how questions of law and fact
predominated over individual issues.24 The district court has “wide discretion”25
in determining whether to certify a class, and to the extent that Allard
“requested” class certification – even if only informally – the district court did
not err or abuse its discretion in failing to consider class certification.
AFFIRMED in part, REVERSED in part.




      24
           See, e.g., McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d 158, 162 (5th Cir. 1995).
      25
           Id.

                                                9
