Wilson v. Boise, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 00-30803
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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,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Jerrod Wilson, a Louisiana prisoner,
appeals a judgment of dismissal of his claims
against prison officials. He alleges that they
interfered with his mail in violation of his
constitutional rights. The magistrate judge
dismissed one claim of interference and the
retaliation claim for failure to exhaust admin-
istrative remedies. It dismissed the
remaining interference claim as frivolous.
We affirm on a different ground.
I.
Wilson sued Mailroom Supervisor Marie
Boise, Warden Burl Cain, and Secretary
Richard Stadler (collectively “prison
officials”) for violation of his constitutional
rights under 42 U.S.C. § 1983. Wilson
alleged that Boise violated his rights by
* 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determined that this opinion should not be
published and is not precedent except under the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.

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confiscating his mail addressed to an
attorney in retaliation for his filing of
administrative grievances against her and
that prison personnel withheld or mishandled
other pieces of mail. Wilson also complained
that prison officials prevented him from
exhausting his administrative remedies by
placing his Administrative Remedy
Procedure forms on backlog pursuant to the
grievance system’s “abuse of the procedure”
rule. He requested declaratory and
injunctive relief, monetary damages, and a
transfer to a different institution.
The magistrate judge dismissed Wilson’s
claims of retaliation and interference with le-
gal mail for failure to exhaust administrative
remedies under 42 U.S.C. § 1997e(a).1 The
court dismissed his claim of interference with
mail addressed to an attorney as frivolous
without reaching the question of exhaustion.2
Wilson then filed a “response to show
cause and for injunction” and a “traverse,”
complaining that the “abuse of the
procedure” rule violated his First
Amendment rights of free speech and
association. He raised a new claim that the
defendants had violated his Sixth
Amendment right to counsel, his Fourth
Amendment right to be free from
unreasonable searches and seizures, and the
prison’s regulations. He prayed for
injunctive relief both against the rule and
against the alleged interference with his mail.
The district court dismissed his complaint
and adopted the magistrate judge’s order
without considering the issues raised in these
motions. Wilson argues that the court
(1) should have construed his “response to
show cause and for injunction” and his “tra-
verse” as motions for leave to amend the
complaint, (2) erred in dismissing his mail-
tampering claims for failure to exhaust
administrative remedies, and (3) that we
should appoint counsel on appeal.
II.
Wilson claims that the court should have
construed his “response” and his “traverse”
as motions for leave to amend the complaint.
He did not request such leave from the
magistrate judge, but courts must grant leave
to amend freely when justice so requires.
FED. R. CIV. P. 15(a).
We review failure to allow the
amendment for abuse of discretion. United
States v. Riascos, 76 F.3d 93, 94 (5th Cir.
1996). Rule 15(a) “circumscribes the
exercise of the district court’s discretion;
thus, unless a substantial reason exists to
deny leave to amend, the discretion of the
district court is not broad enough to permit
denial.” Shipner v. E. Air Lines, Inc., 868
F.2d 401, 407 (11th Cir. 1989) (dictum). In
discerning the presence of said “substantial
reason,” the district court may consider such
factors as “undue delay, bad faith, dilatory
motive on the part of the movant, repeated
1 The statute reads: “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 jail, prison, or
other correctional facility until such
administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a).
2 Wilson claims, on appeal, that he sought an
attorney both in civil matters concerning prison
conditions and in matters relating to his criminal
conviction. His administrative complaints,
however, indicate that the mail in fact related to
civil matters.

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

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

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

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sult directly from his own litigiousness.
Were we to hold prison authorities to the
standard deadlines on all claims, prisoners
could easily circumvent the requirement of
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
no issues we may reach on the merits. We
deny the motion.
AFFIRMED.

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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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