Michael Lane v. John Doe, et al

Filing

UNPUBLISHED OPINION FILED. [09-20429 Affirmed ] Judge: EGJ , Judge: EMG , Judge: CES Mandate pull date is 11/19/2010; granting motion to file brief out of time filed by Appellant Mr. Michael Lane [6546673-2] [09-20429]

Michael Lane v. John Doe,:et al Case 09-20429

Document: 00511279615 Page: 1 Date Filed: 10/29/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-20429 S u m m a r y Calendar October 29, 2010 Lyle W. Cayce Clerk

M I C H A E L LANE, P la in t if f -A p p e lla n t v. J O H N DOE, Captain; JOHN DOE, Sergeant; JOSEPH G. HEJL, III, Jailer; J A I R SANTANA, Jailer, Defendants-Appellees

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:06-CV-3739

B e fo r e JOLLY, GARZA and STEWART, Circuit Judges. P E R CURIAM:* M ic h a e l Lane, Texas prisoner # 1238595, appeals the district court's s u m m a r y judgment dismissal of his 42 U.S.C. § 1983 complaint, asserting claims o f excessive force, denial of adequate medical care, and retaliation, for failure to e x h a u s t administrative remedies, pursuant to 42 U.S.C. § 1997e(a). Lane's m o t io n for an extension of time to file a reply brief is GRANTED. His motions

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

*

Dockets.Justia.com

Case: 09-20429 Document: 00511279615 Page: 2 Date Filed: 10/29/2010 No. 09-20429 t o strike the appellee's brief and to order the unserved defendants to file a brief a r e DENIED. We review the district court's grant of summary judgment de novo. Cousin v . Small, 325 F.3d 627, 637 (5th Cir. 2003). Lane was required under § 1997e(a) t o exhaust administrative remedies before filing suit. See § 1997e(a); Jones v. B o c k , 549 U.S. 199, 202 (2007); Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2 0 0 4 ). Proper exhaustion is required, meaning that the prisoner must not only p u r s u e all available avenues of relief; he must also comply with all a d m in is t r a t iv e deadlines and procedural rules. Woodford v. Ngo, 548 U.S. 81, 8 9 -9 5 (2006). Because exhaustion is an affirmative defense, Jair Santana, the p a r ty moving for summary judgment, had the burden to demonstrate that Lane fa ile d to exhaust available administrative remedies and was required to e s t a b lis h "beyond peradventure all of the essential elements of the defense of e x h a u s t io n to warrant summary judgment" in his favor. Dillon v. Rogers, 596 F .3 d 260, 266 (5th Cir. 2010). V ie w i n g the evidence in the light most favorable to Lane, the summary ju d g m e n t evidence reveals no genuine issue of material fact on the issue whether L a n e failed to complete the required steps of the Harris County Jail grievance p r o c e d u r e with respect to his November 30, 2004, grievance, which alleged e x c e s s iv e force by Joseph G. Hejl III. Lane's grievance raised no allegations in v o lv in g Santana, Sergeant John Doe, or Captain John Doe and did not allege d e la y e d medical care or retaliation. Because Lane failed to complete the

a d m in is t r a t iv e review process, the district court did not err in dismissing Lane's c o m p la in t for failure to exhaust administrative remedies. See Ngo, 548 U.S. at 93. We find no error in the decision to award summary judgment to the

u n s e r v e d defendants. See NL Indus., Inc. v. GHR Energy Corp., 940 F.2d 957, 9 6 5 (5th Cir. 1991). AFFIRMED.

2