Henderson v. LA Dept of Corr, et al

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
October 22, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-30338
Conference Calendar
ZAMBIE HENDERSON,
Plaintiff-Appellant,
versus
LOUISIANA DEPARTMENT OF CORRECTIONS;
RICHARD L. STALDER; KELLY WARD; EARL
BENSON; MICHAEL RHODES; SARAH BILBERRY;
JOHNNIE SUMLIN; JOHN ROBINSON,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 00-CV-1251
--------------------
Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Zambie Henderson, Louisiana prisoner # 335649, appeals the
district court’s dismissal without prejudice of his 42 U.S.C.
§ 1983 action for failure to exhaust his administrative remedies.
He asserts that because his first prison grievance was dismissed
as untimely, he exhausted his administrative remedies on his
claims of an improper seizure of his legal materials. Henderson

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No. 03-30338
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has not established that a grievance that is dismissed as
untimely constitutes an exhausted administrative remedy. See
Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003).
Henderson also asserts that he filed a second prison
grievance challenging the constitutionality of prison regulations
after his lawsuit was filed and that this grievance procedure was
completed while his suit was pending. He has not established
that his administrative remedies were exhausted before his
lawsuit was filed. See 42 U.S.C. § 1997e(a); Wendell v. Asher,
167 F.3d 887, 891 (5th Cir. 1998).
Henderson has not shown that the district court erred in
dismissing his civil rights lawsuit. See Powe v. Ennis, 177 F.3d
393, 394 (5th Cir. 1999). Consequently, the judgment of the
district court is AFFIRMED.

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