                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  April 26, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-30383
                          Summary Calendar


                          MARLIN FONTENOT,

                                               Plaintiff-Appellant,

                               versus

        GLOBAL EXPERTISE IN OUTSOURCING, in its individual
      capacity as the private prison contractor; OTIS KENT
    ANDREWS; CHARLES SIMON; MELANIE FOWLER; BETTY DUPLECHAIN,

                                              Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                      USDC No. 2:05-CV-352
                       --------------------

Before JONES, Chief Judge, and KING and DAVIS, Circuit Judges.

PER CURIAM:*

     Marlin Fontenot, Louisiana prisoner # 093804, appeals both the

district court’s dismissal of his civil rights complaint pursuant

to 42 U.S.C. § 1997e(a) for failure to exhaust administrative

remedies and the denial of his motion under Federal Rule of Civil

Procedure 59.    Fontenot asserts that the prison’s administrative

grievance procedure was not available to him for purposes of

§ 1997e(a) because the prison’s inmate counsel substitutes refused

to help him and he required their assistance due to his physical

     *
      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this opinion should not be published and is not precedent except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.
and mental disabilities.       He contends that he did not find another

inmate willing to help him until after the 90-day deadline had

passed.

     We review the dismissal of a 42 U.S.C. § 1983 complaint for

failure to exhaust administrative remedies de novo.                Days v.

Johnson, 322 F.3d 863, 866 (5th Cir. 2003). Assuming arguendo that

the administrative process was not available to Fontenot while he

could not find someone to assist him, he is not excused from the

exhaustion requirement because he did not file a grievance once he

found an inmate willing to help him, prior to filing a § 1983 suit.

See Days, 322 F.3d at 867-68.        He argues that it would have been

futile to file a grievance at that time because it would have been

untimely.      Futility   is   not   an   exception   to   the   exhaustion

requirement.    See id.

     Fontenot also renews his argument that the district court

should have amended its judgment under Federal Rule of Civil

Procedure 59(e) to equitably toll the prescriptive period while he

attempts to exhaust prison remedies.        We hold that the statute of

limitations should be equitably tolled during the pendency of the

instant suit and any subsequent state administrative proceeding.

See Clifford v. Gibbs, 298 F.3d 328, 333 (5th Cir. 2002).

     The judgment of the district court is AFFIRMED as MODIFIED.




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