Robinson v. Schilling

U.S. Court of Appeals for the Fifth Circuit

Robinson v. Schilling

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40757 Conference Calendar

GEORGE BENJAMIN ROBINSON,

Plaintiff-Appellant,

versus

JERRY SCHILLING; DAVID GNUSCHKE; DOUG KAZ; GERARDI; J. HADWIN; ALEX PERREZ,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. C-00-CV-238 -------------------- February 19, 2003 Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

George Benjamin Robinson, federal prisoner #16831-034,

appeals the district court’s dismissal without prejudice of his

claims under Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics,

403 U.S. 388

(1971), following this court’s remand of

Robinson’s equal protection claims for further consideration.

Robinson’s motion for records and sanctions is DENIED.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40757 -2-

Robinson contends that the district court erred in

dismissing his equal protection claims for failure to exhaust

administrative remedies. Robinson claims to have filed

administrative grievances on May 8, 1999, June 20, 1999, and

August 3, 1999; however, those grievances could not have related

to Robinson’s equal protection claims, which arose from the

termination of his prison job on or about May 2000. Robinson’s

vague and conclusional assertion that on some other unspecified

date he filed administrative grievances is clearly insufficient

to allege exhaustion. And Robinson’s allegations regarding his

filing of an August 7, 1999, grievance with the Deputy Attorney

General and a September 12, 1999, claim under the Federal Tort

Claims Act do not allege compliance with the official

administrative grievance process. See

28 C.F.R. § 542.10

et.

seq. Robinson has thus failed to allege with sufficient

specificity that he exhausted his administrative remedies with

respect to his equal protection claims. See Underwood v. Wilson,

151 F.3d 292, 296

(5th Cir. 1998).

To the extent that Robinson is suggesting that he was not

required to exhaust his administrative remedies because the

grievances he did file were ignored, his argument is without

merit. A prisoner must exhaust all available administrative

remedies, regardless of whether those remedies meet federal

standards or are plain, speedy, or effective. See Porter v.

Nussle,

534 U.S. 516, 524

(2002). There is no futility exception No. 02-40757 -3-

to the exhaustion requirement. See Booth v. Churner,

532 U.S. 731

, 741 n.6. (2001).

Finally, Robinson’s assertions that he suffered continuing

retaliation after he was rehired to his prison job in December

2000 and that his legal papers were unconstitutionally

confiscated in January 2002 are beyond the scope of this court’s

remand order and thus will not be considered. See Burroughs v.

FFP Operating Partners,

70 F.3d 31, 33

(5th Cir. 1995). The

judgment of the district court is AFFIRMED.

AFFIRMED; MOTION DENIED.

Reference

Status
Unpublished