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42 U.S.C. § 1997e(a) states that:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
... In Underwood, we stated that "a non-jurisdictional exhaustion requirement may, in certain rare instances, be excused." Id. at 296. ...
Although Underwood was decided based on the text of section 1997e(a), the decision predates the Supreme Court decisions in Woodford v. Ngo, 548 U.S. 81 (2006), and Jones v. Bock, 549 U.S. 199 (2007). Because Woodford and Jones addressed the PLRA pre-filing exhaustion requirement, we must revisit our decision in Underwood in the light of those decisions. See, e.g., Trizec Properties, Inc. v. U.S. Mineral Prods. Co., 974 F.2d 602, 604 n.9 (5th Cir. 1992) ("We are bound to prior panel opinions absent en banc reconsideration or a superseding contrary Supreme Court case . . . .").
In Woodford, the Supreme Court applied section 1997e(a) to a prisoner's federal complaint, filed after he missed prison grievance process deadlines. 548 U.S. at 87-88. The Court held that the prisoner had not properly exhausted his administrative remedies and ordered the case dismissed. In doing so, the Court concluded that "[e]xhaustion is no longer left to the discretion of the district court, but is mandatory." Id. at 85. "The PLRA attempts to eliminate unwarranted federal-court interference with the administration of prisons, and thus seeks to 'affor[d] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.'" Id. at 93 (quoting Porter v. Nussle, 534 U.S. 516, 525 (2002)) (footnote omitted). Furthermore, in Jones, the Court instructed that, "There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court." Jones, 549 U.S. at 211 (citing Porter, 534 U.S. at 524). The Court stated, "All agree that no unexhausted claim may be considered." Id. at 219-20.
After Woodford and Jones, there can be no doubt that pre-filing exhaustion of prison grievance processes is mandatory.
Gonzalez v. Seal, (5th Cir., 2012).