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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 99-40063
_______________________
MARK ERIC WRIGHT,
Plaintiff-Appellant,
versus
GAYLE HOLLINGSWORTH, ETC., ET AL,
Defendants,
GAYLE HOLLINGSWORTH, Registered Nurse at Telford,
Individually and in official capacity,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
July 24, 2001
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
This case returns to us for rehearing and renews the
question whether the district court properly dismissed, for failure
to exhaust prison grievance remedies, the appellant's § 1983 claim
against a prison nurse.
In Booth v. Churner, ____ U.S. ____, 121 S.Ct. 1819
(2001), the Supreme Court held that Congress intended a prisoner to

invoke "such administrative remedies as are available" in the
prison, without regard to whether the grievance procedure affords
money damage relief, before he may file suit contesting prison
conditions in federal court. 42 U.S.C. § 1997e(a) (West Supp.
1999). Before Booth was decided, the instant case had been voted
en banc to reconsider such of our decision as Whitley v. Hunt, 158
F.3d 882 (5th Cir. 1998), that did not mandate exhaustion. After
Booth, this case was remanded from en banc court to the original
panel because the Supreme Court's decision effectively overruled
Whitley.
Quibbles about the nature of a prisoner's complaint, the
type of remedy sought, and the sufficiency or breadth of prison
grievance procedures were laid to rest in Booth. Justice Souter
summed up the Court's conclusion in a footnote:
Here, we hold only that Congress has provided in §
1997e(a) that an inmate must exhaust irrespective of the
forms of relief sought and offered through administrative
sources.
121 S.Ct. at 1825, n.6. The major issue raised by Wright, that he
need not exhaust if money damages were unavailable through the
grievance procedure of the Texas Department of Criminal Justice, is
thus resolved.
Wright asserts other issues, however, in light of Booth
and in response to this panel's request for supplemental letter
briefs on remand. First, Wright contends that "in contrast to
2

Booth", his complaint seeks redress for his injury (a ruptured
eardrum) and pain and suffering, harms that can only be relieved by
money damages. This is but another way of narrowly parsing the
"available" "remedies" language in § 1997e(a); it legally and
factually mischaracterizes Booth, where only money damages were
sought when the case got to court; and it is unconvincing.
Second, Wright alleges that he substantially complied
with the TDCJ administrative procedures by filing a Step One
grievance, which put the prison on notice of his complaint and
offered the authorities an opportunity to mediate the dispute. But
he did not pursue the grievance remedy to conclusion. Nothing in
the Prison Litigation Reform Act,1 however, prescribes appropriate
grievance procedures or enables judges, by creative interpretation
of the exhaustion doctrine, to prescribe or oversee prison
grievance systems. TDCJ has promulgated a detailed, complex and
carefully thought-out program to facilitate the filing of
grievances and assure their prompt, dispassionate investigation.
The PLRA required Wright to exhaust "available" "remedies",
whatever they may be. His failure to do so prevents him from
pursuing a federal lawsuit at this time.2
1
Pub. L. No. 104-34, Title I, § 101(a), 110 Stat. 1321-71 (1996).
2
The 42 U.S.C. § 1997e exhaustion requirement is not jurisdictional
and may be subject to certain defenses such as waiver, estoppel or equitable
tolling. Underwood v. Wilson, 151 F.3d 292, 294-95 (5th Cir. 1998).
3

Third, Wright criticizes Hollingsworth, the remaining
defendant, for not timely raising her exhaustion defense in the
district court. Even if we allow that the procedural development
of this case has been erratic, it is too late for Wright's waiver
claim, newly raised after three years of litigation and after
remand from the Supreme Court.
Wright's final points request, if all else fails,
dismissal without prejudice and equitable tolling of the Texas
statute of limitations during the pendency of this action and any
additional state administrative proceedings. These modifications
of the judgment are appropriate. See Wendell v. Asher, 162 F.3d
887, 892 (5th Cir. 1998) (dismissal without prejudice); Harris v.
Hegman, 198 F.3d 153, 157-59 (5th Cir. 1999) (under PLRA exhaustion
requirement, limitations on a prisoner's § 1983 claims is tolled
during administrative proceedings).
For the foregoing reasons, the judgment of the district
court is AFFIRMED as MODIFIED, i.e., Wright's case is dismissed
without prejudice pending exhaustion of TDCJ grievance procedures
and limitations will be tolled pending exhaustion.
AFFIRMED as MODIFIED.
4