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

                                                 FILED
                                                                            June 26, 2009

                                       No. 08-30534                    Charles R. Fulbruge III
                                                                               Clerk

RENODE COLLINS

                                                   Plaintiff - Appellant
v.

RICHARD L STALDER, Secretary of Corrections; BURL CAIN, Warden;
LOUISIANA STATE PENITENTIARY; CURLY ALFRED, Correctional
Officer at Louisiana State Penitentiary; HEALTH CARE PROVIDER # 71; B
JOHNSON; HEALTH CARE PROVIDER # 17; HEALTH CARE PROVIDER
# 66; JOHN DOE, Doctor

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:06-CV-163


Before REAVLEY, WIENER, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Pro se Plaintiff-Appellant Renode Collins is an inmate at the Louisiana
State Penitentiary at Angola (“Angola”). In February 2006, Collins brought this
suit against a number of Angola officials and employees (“Defendants”) pursuant




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-30534

to 42 U.S.C. § 1983, claiming that prison officials disregarded medical
restrictions limiting the type of work he could do. The case took a series of
procedural twists and turns until April 2008 when the magistrate judge (“MJ”)
determined that the suit should be dismissed because Collins had not exhausted
the available administrative remedies before filing suit. When the MJ filed her
recommendation with the district court, the court failed to notify Collins. As a
result, he did not file objections within the requisite ten-day window. After that
window closed, the district court adopted the MJ’s findings and dismissed the
suit. Collins timely filed a notice of appeal. We reverse and remand for further
proceedings.
                          I. FACTS AND PROCEEDINGS
       The incident giving rise to Collins’s suit occurred in March 2005, following
which he properly filed a Step One grievance pursuant to prison procedure.
Almost a year later, in February 2006, Collins filed suit in the district court for
the Middle District of Louisiana while his grievances were still under
consideration and therefore unexhausted.1 Within a few months, this suit was
dismissed without prejudice because Collins had failed to describe the steps he
had taken to exhaust his administrative remedies, then failed to respond to the
district court’s notice that he must do so. On October 3, 2006, Collins’s Step Two
grievance was denied, concluding the administrative proceedings and satisfying
his exhaustion requirement.           In June 2007, Collins’s suit was reinstated
following his successful appeal.2 Defendants filed their answer in December

       1
         An inmate may not bring a § 1983 action regarding prison conditions without
previously exhausting available administrative remedies. 42 U.S.C. § 1997e(a).
       2
        We determined that Collins’s failure to respond to the district court’s notice that he
must include details about his pursuit of administrative remedies was not contumacious and

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2007.
        Defendants then moved for summary judgment on the basis of Collins’s
purported failure to pursue administrative remedies.               The MJ agreed, and
recommended that the district court dismiss the suit. Notified by mail of the
MJ’s recommendation (the “First Recommendation”), Collins filed objections
during the statutory ten-day response period,3 asserting that indeed he had
sought administrative remedy through the prison grievance procedure. On the
basis of Collins’s objection, the district court rejected the MJ’s First
Recommendation and returned the case to the MJ for further proceedings. The
MJ then filed a supplemental recommendation (the “Second Recommendation”)
suggesting that Defendants be granted summary judgment because Collins’s suit
had been filed before he exhausted his administrative remedies. The district
court failed to notify Collins of the MJ’s Second Recommendation, however, so
— unsurprisingly — Collins filed no objections during the ten-day window. The
district court adopted the MJ’s Second Recommendation and granted summary
judgment to Defendants. Only then did Collins receive a notice by mail that the
district court had dismissed his case. Collins timely filed this appeal.
                                     II. ANALYSIS
        The gravamen of Collins’s appeal is that the district court erred in
dismissing his suit without affording him the opportunity to object to the MJ’s
Second Recommendation. We agree.




may have resulted from his not having received that notice. Collins v. Stalder, 236 F. App’x
29, 30-31 (5th Cir. 2007) (summary calendar) (citing Berry v. CIGNA/RSI-CIGNA, 975 F.2d
1188, 1191 (5th Cir. 1992)).
        3
            28 U.S.C. § 636(b).

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A. Standard of Review
       We review a grant of summary judgment de novo.4 In doing so, we review
the district court’s legal conclusions de novo, but its factual conclusions only for
clear error.5 As Collins is appearing pro se, we construe his brief liberally.6
B. Magistrate Judge’s Recommendation
       It is beyond dispute that when an MJ files a recommendation to the
district court on a matter dispositive to the proceedings, the district court must
notify the parties that they have ten days within which to file objections to the
MJ’s report.7 Notification of the parties is mandatory.8
       At Angola, legal mail to prisoners is logged in by addressee, date, and
sender. Collins has submitted a copy of this log for the period in question. It
shows that no legal mail was received by Collins from the district court between
April 9, 2008 (the date of the MJ’s recommendation) and May 6, 2008 (the date
Collins received the district court’s ruling).9 We presume that there were no
irregularities in the prison’s mailroom procedures that month — and Defendants
allege none. We therefore conclude that the MJ’s Second Recommendation was
never sent to Collins.

       4
        Goodrum v. Quarterman, 547 F.3d 249, 255 (5th Cir. 2008); see also Douglass v.
United Servs. Auto Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).
       5
           Goodrum, 547 F.3d at 255.
       6
           Andrade v. Gonzales, 459 F.3d 538, 543 (5th Cir. 2006).
       7
           28 U.S.C. § 636(b); FED . R. CIV . P. 72(b).
       8
         Douglass, 79 F.3d at 1428-29, 1430; see also Nettles v. Wainright, 677 F.2d 404, 410
(5th Cir. Unit B 1982) (en banc), overruled on other grounds by Douglass, 79 F.3d at 1428 n.15.
       9
        On May 7, 2008, the district court entered a revised order to correct a typographical
error. Judgment was entered on May 12.

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       Not having been notified by the court of the MJ’s Second Recommendation,
Collins had no opportunity to object to the MJ’s findings and recommendations.
Indeed, he was apparently unaware that the proceedings had been conducted
and completed until he was informed that the district court had granted
summary judgment against him. Given the presence of some confusion in the
case law as to whether harmless-error review is required when the court fails to
                  10
notify a party,        we pretermit such an analysis here and instead hold that, on

the facts of this case, the district court’s failure to notify Collins of the MJ’s
Second Recommendation and the ten-day period for filing objections was
“harmful” per se.11 That decision was rendered on grounds that Collins had not



       10
          See, e.g., McGill v. Goff, 17 F.3d 729, 731 (5th Cir. 1994), overruled on other grounds
by Kansa Reinsurance Co. Ltd. v. Congressional Mortgage Corp. of Tex., 20 F.3d 1362 (5th Cir.
1994); see also Johnson v. Johnson, 194 F.3d 1309, at *1 (5th Cir. 1999) (summary calendar)
(harmless error analysis required); Braxton v. Estelle, 641 F.2d 392, 397 (5th Cir. Apr. 3,
1981); but see Nettles, 677 F.2d at 410 (holding that “no limitation of the right to appeal . . .
and no limitation of the scope of appeal . . . shall result unless the magistrate informs the
parties that objections must be filed within ten days after the service of a copy of the
magistrate’s report is made upon them.”).
       11
          Had he been afforded the opportunity to object to the MJ’s Second Recommendation,
Collins would have been able to point out that, even if his suit was initially premature, by
April 2008 when the MJ made her determination, he was in full compliance with the statutory
requirements and had been for eighteen months. To then dismiss solely on the ground that
the very fact of Collins’s premature filing was fatal to his claim — even after he had satisfied
the § 1997e exhaustion requirement — would not only facilitate and encourage gamesmanship
by defendants, who could wait until an inmate’s statute of limitations has run before moving
for dismissal, but would also contravene our practice of dismissing premature filings without
prejudice to permit a plaintiff to exhaust. See, e.g., Clifford v. Gibbs, 298 F.3d 328, 331-32 (5th
Cir. 2002); Wright v. Hollingsworth, 260 F.3d 357, 358 n.2, 359 (5th Cir. 2001).
        Furthermore, Collins’s case had been dismissed and then reinstated — for which
Collins paid a second filing fee — after he had exhausted his administrative remedies.
Moreover, that prior dismissal, which was without prejudice, was entered because of Collins’s
failure to note whether he had exhausted his administrative remedies and to give him an
opportunity to do so, if in fact he had not already.

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been afforded an opportunity to rebut. Indeed, his successful rebuttal of a very
similar argument in his objection to the First Recommendation, supra, would
have indicated that the particular issue had been resolved (in his favor).12
C. Change of Venue
       Collins also requests a change of venue to avoid future errors, noting that
he has twice had to pay filing fees because of the district court’s error and our
reversal at an earlier stage in this proceeding. We reject Collins’s request for a
change of venue,13 but instruct the district court to waive any further filing fees
or charges associated with the reinstatement of Collins’s lawsuit as a result of
this appeal.
                                  III. CONCLUSION
       We REVERSE the district court’s dismissal of Collins’s action and
REMAND this case to that court for further proceedings consistent with this
opinion.




       12
          Defendants raise a number of additional defenses in their brief, but we do not take
them up so that, on remand, the district court may consider them in the first instance. See,
e.g., Long v. McCotter, 792 F.2d 1338, 1345 (5th Cir. 1986).
       13
         Venue in this case is proper in the Middle District of Louisiana, in which Angola is
located. See 28 U.S.C. § 1391(b).

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