Brady Hicks, Jr. v. Tarrant County Texas

Filing 511075465

Case: 09-11045

Document: 00511075465

Page: 1

Date Filed: 04/09/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-11045 S u m m a r y Calendar April 9, 2010 Lyle W. Cayce Clerk

B R A D Y HICKS, JR., P l a in t i f f - A p p e l l a n t v. D E P U T Y /J A IL E R J. GARCIA, Tarrant County Sheriff, D e fe n d a n t-A p p e lle e

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 4:06-CV-311

B e fo r e JOLLY, WIENER, and ELROD, Circuit Judges. P E R CURIAM:* P la in tiff -A p p e lla n t Brady Hicks, Jr., Texas prisoner # 1254510, appeals t h e district court's final judgment dismissing his 42 U.S.C. § 1983 civil rights c o m p la in t against Deputy/Jailer J. Garcia for failure to exhaust administrative r e m e d ie s . Hicks contends that the district court erred when, sua sponte, it d is m is s e d his claims against Deputy Garcia prior to service of process and w it h o u t affording notice and an opportunity to respond. We affirm.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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" N o tw it h s ta n d in g any filing fee, or any portion thereof, that may have b e e n paid," the district court must dismiss an in forma pauperis complaint if, at a n y time, it determines that the action is frivolous or fails to state a claim on w h ic h relief may be granted. 28 U.S.C. § 1915(e)(2)(B). Further, 28 U.S.C. § 1 9 1 5 A requires that the district court screen complaints filed by a prisoner s e e k in g redress from a government officer or employee and dismiss claims that t h e court determines to be frivolous or malicious, or that fail to state a claim on w h ic h relief may be granted. § 1915A(a), (b)(1). Under the Prison Litigation Reform Act, inmates must exhaust "such a d m in is t r a tiv e remedies as are available" prior to bringing a civil action. § 1997e(a). Failure to exhaust is an affirmative defense, and "inmates are not r e q u ir e d to specifically plead or demonstrate exhaustion in their complaints." J o n e s v. Bock, 549 U.S. 199, 216 (2007). Although district courts may not screen p r is o n e r s ' complaints for failure to plead exhaustion, they may, sua sponte, " d i s m i s s a case prior to service on defendants for failure to state a claim, p r e d ic a te d on failure to exhaust, if the complaint itself makes clear that the p r is o n e r failed to exhaust." Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007). " [W e review] a district court's dismissal of a prisoner's complaint for failure to e x h a u s t de novo." Id. at 327. W h e n he was a pretrial detainee in the Tarrant County Jail (TCJ) and was r e s tr a in e d in a restraint chair, Hicks was assaulted by a fellow inmate. In his a m e n d e d complaint, Hicks alleged that he filed grievances complaining of the a s s a u lt and attached copies of three grievances he had filed while in the TCJ. H ic k s also alleged that the TCJ did not maintain a two-step grievance procedure a n d that TCJ officials never responded to his grievances. As we have previously noted, "[t]he TCJ provides a two-step procedure for p r e s e n t in g a grievance: (1) an inmate must send a written statement directly to t h e Grievance Board, which should respond within 60 days, then (2) if an inmate is dissatisfied with the Grievance Board's response, he may appeal in writing to 2

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t h e Inmate Grievance Appeal Board within five days of receiving the written r e s p o n s e to his grievance." Hicks v. Tarrant County Texas, 345 F. App'x 911, 913 (5 th Cir. 2009); Hicks v. Deputy Parker, No. 08-11015, 2009 WL 2762302 at *2 (5 th Cir. Sept. 1, 2009) (unpublished). Accepting Hicks's allegations as true, he e x h a u s te d the first step of the two-step grievance procedure once the 60-day p e r io d for responding had expired. See Underwood v. Wilson, 151 F.3d 292, 295 (5 th Cir. 1998) (overruled on other grounds). Because he did not appeal the G r ie v a n c e Board's decisions (or lack thereof) by filing a step-two grievance, h o w e v e r , Hicks's failure to pursue his grievance remedy to conclusion c o n s tit u te d a failure to exhaust his administrative remedies. See Wright v. H o llin g sw o rt h , 260 F.3d 357, 358 (5th Cir. 2001). Hicks's amended complaint and our prior decisions make clear that he fa ile d to exhaust his administrative remedies and thus failed to state a claim on w h ic h relief may be granted. Therefore, the district court did not err when it d i s m is s e d Hicks's claims against Deputy Garcia sua sponte prior to service of p r o c e s s . See Carbe, 492 F.3d at 328. The record shows that the exhaustion issue w a s thoroughly briefed and that Hicks was given adequate notice that his claims w e r e subject to dismissal for failure to exhaust administrative remedies. F in a lly , the record does not support Hicks's contention that he filed petitions for c e r t io r a r i in Hicks v. Tarrant County Texas and Hicks v. Deputy Parker. See H ic k s , 345 F. App'x at 911; Hicks, 2009 WL 2762302 at *1. Accordingly, the d i s tr ic t court's judgment is AFFIRMED.

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