United States Sixth Circuit

A second filing fee should not be assessed to a prisoner whose initial complaint was dismissed without prejudice for failure to exhaust. In a 42 U.S.C. section 1983 action alleging that various officials employed by a correctional department and a probation and parole board violated plaintiff's constitutional rights, dismissal of the complaint for failure to exhaust is reversed where the district court erroneously considered the prison's grievance procedure an "available" remedy for plaintiff's classification-related complaint under 42 U.S.C. section 1997e(a) and failed to consider submissions showing that plaintiff exhausted the available remedy for such complaints.

Appellate Information

• Decided 08/29/2006
• Published 08/29/2006

Judges

• Before:  MOORE, COLE, and CLAY, Circuit Judges.

Court

• United States Sixth Circuit

Counsel

• For Appellees:
  
• ARGUED:  Mary A. Hale, Burch, Porter & Johnson, Memphis, Tennessee, for Appellant.  Mark A. Hudson, Office of the Attorney General, Nashville, Tennessee, for Appellees.   ON BRIEF:  Mary A. Hale, Jennifer Shorb Hagerman, Burch, Porter & Johnson, Memphis, Tennessee, for Appellant.  Mark A. Hudson, Office of the Attorney General, Nashville, Tennessee, for Appellees.