Smalley v. Benjamin, et al

* Judge Politz concurred in the above opinion before his death on May 25, 2002.
** 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should not be published and is not precedent except under the limited circumstances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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-31423
Summary Calendar
LEAVORDA L. SMALLEY,
Plaintiff-Appellant,
versus
KEVIN BENJAMIN, Lieutenant ;
HENRY ROBINSON; JOE DOE;
BURL CAIN; JAMIE FIELDER,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 01-CV-858-D
June 3, 2002
Before POLITZ*, WIENER, and PARKER, Circuit Judges.
PER CURIAM:**

-- 1 of 3 --

1 Powe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999).
2 Booth v. Churner, 532 U.S. 731, 739-41 & n.6 (2001); see also Wright v.
Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001).
2
Leavorda L. Smalley, Louisiana prisoner # 106878, appeals the dismissal of his
42 U.S.C. § 1983 lawsuit for failure to exhaust administrative remedies under 28
U.S.C. § 1997e(a). He has also filed a motion to: (1) supplement his appeal to assert
for the first time that he should not be required to exhaust because the Louisiana
Supreme Court has determined the state prisons’ administrative remedies procedure to
be unconstitutional; and (2) compel the prison officials to respond to his grievance. We
review the district court’s dismissal under § 1997e(a) de novo.1 Concluding that
Smalley has failed to exhaust his administrative remedies as he was required to do
under § 1997e(a), we affirm.
Smalley’s § 1983 grievance remains pending before the prison’s administrative
body, however, he asserts that he should not be required to exhaust his administrative
remedies because he has never received a response to his grievance. He further
maintains that exhaustion would be futile and that his § 1983 complaint would be
barred by the applicable one-year statute of limitations if he were to continue to wait
for an administrative ruling. The fact that Smalley has not received a prompt response
to his grievance does not excuse him from the § 1997e exhaustion requirement.2

-- 2 of 3 --

3 Harris v. Hegmann, 198 F.3d 153, 157-59 (5th Cir. 1999).
4 Porter v. Nussle, 122 S.Ct. 983, 987-88 (2002); see also Wendell v. Asher,
162 F.3d 887, 890 (5th Cir. 1998).
5 Shanks v. Allied Signal, 169 F.3d 988, 993 n.6 (5th Cir. 1999).
3
Furthermore, his concern regarding the limitations bar on his § 1983 action is meritless
because the limitations period will be tolled during the pendency of his grievance.3
Likewise, his assertion that, in lieu of dismissal, the district court should have granted
him a stay of proceedings to enable him to exhaust his administrative remedies is
meritless. Under § 1997e, a district court may no longer stay proceedings to allow a
prisoner to exhaust.4
We will not consider an argument raised for the first time on appeal, therefore,
Smalley’s motion to supplement his appeal to add a new basis for relief is denied.5
The judgment of the district court is AFFIRMED. Smalley’s motions to
supplement his appellate brief and to compel are DENIED.

-- 3 of 3 --