Lozano v. Davis et al

Filing 34

MEMORANDUM ORDER overruling objections and adopting 31 Report and Recommendation. The motions for summary judgment are granted. Signed by District Judge Marcia A. Crone on 1/29/21. (tkd, )

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UNITED STATES DISTRICT COURT
ERIC D. LOZANO,
Plaintiff,
versus
LORIE DAVIS, et al.,
Defendants.

EASTERN DISTRICT OF TEXAS
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CIVIL ACTION NO. 1:18-CV-16

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff Eric D. Lozano, an inmate confined at the Stringfellow Unit of the Texas
Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, filed this
civil rights lawsuit pursuant to 42 U.S.C. § 1983 against Lorie Davis, Darrell K. Nash and
Timothy W. Aylor. The court previously referred this matter to the Honorable Zack Hawthorn,
United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws
and orders of this court.
The defendants have filed motions to dismiss, which the magistrate judge treated as motions
for summary judgment. The magistrate judge has submitted a Report and Recommendation of
United States Magistrate Judge recommending the motions be granted based on his conclusion that
plaintiff failed to exhaust his administrative remedies.
The court has received the Report and Recommendation, along with the record, pleadings,
and all available evidence. Plaintiff filed objections to the Report and Recommendation. The
court must therefore conduct a de novo review of the objections in relation to the pleadings and
the applicable law.
The court has been provided with three grievances filed by plaintiff. The Step 1 and Step
2 grievances attached to his complaint concern events which occurred at the Stringfellow Unit.
This lawsuit involves events which occurred at the LeBlanc Unit. Grievance number 2018064007
consists of a Step 1 grievance that was returned to plaintiff as redundant and a Step 2 grievance

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which plaintiff states he filed, but did not receive a response from prison officials. Grievance
number 2018050462 consists of Step 1 and Step 2 grievances which were not responded to until
after the date on which this lawsuit is considered to have been filed.
The magistrate judge concluded the grievances attached to plaintiff’s complaint did not
constitute adequate exhaustion because they involved events that occurred at a different unit and
individuals other than the named defendants in this lawsuit. Grievance number 2018064007 was
found to be insufficient to exhaust plaintiff’s administrative remedies because the deadline for
prison officials to have responded to plaintiff’s Step 2 grievance was after the date on which this
case is considered to have been filed. Grievance number 2018050462 was found to be insufficient
for exhaustion purposes because it was not responded to until after the lawsuit was filed.
Plaintiff contends the Step 1 and Step 2 grievances he attached to his complaint should have
satisfied the exhaustion requirement because his lawsuit concerns a prison policy which is the same
at all units within the state prison system.
Title 42 U.S.C. § 1997e(a) requires prisoners to exhaust available administrative remedies
before filing a lawsuit. The exhaustion requirement serves two purposes: (1) protecting the
authority of administrative agencies by allowing an agency to correct its own mistakes before a
lawsuit is filed and (2) promoting efficiency as administrative review processes are generally faster
and more economical than litigation. Woodford v. Ngo, 548 U.S. 81, 89 (2006). To be
considered sufficient to satisfy the exhaustion requirement, the grievance should give prison
officials “fair notice” of the conditions that form the basis for the lawsuit. Johnson v. Johnson,
385 F.3d 503, 516 (5th Cir. 2005).
The grievances attached to plaintiff’s complaint concern the same policy that is at issue in
this lawsuit. However, policies can be implemented differently at different units. The grievances
attached to the complaint, which attacked the policy as it was implemented at the Stringfellow
Unit, did not give prison officials fair notice of how the policy was being implemented at the
LeBlanc Unit. It therefore did not serve the first purpose of the exhaustion requirement because
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it did not give the administrative agency the chance to correct whatever mistakes might have been
being made at the LeBlanc Unit. As a result, the grievances attached to the complaint are
insufficient to satisfy the statutory exhaustion requirement.
In support of his contention that the grievances attached to his complaint were sufficient,
plaintiff cites Moussazdeh v. Texas Department of Criminal Justice, 703 F.3d 781 (5th Cir. 2012).
However, that case is distinguishable. In Moussazdeth, the plaintiff, prior to filing suit, exhausted
his administrative remedies by filing grievances concerning conditions at the Eastham Unit, where
he was incarcerated when he filed his lawsuit. While the plaintiff was subsequently transferred
to other units, the United States Court of Appeals for the Fifth Circuit held that the grievances he
filed concerning conditions at the Eastham Unit satisfied the exhaustion requirement. In the
present case, however, plaintiff’s grievances concern events at a unit other than the unit where he
was incarcerated when the case was filed. In Moussazdeth, the plaintiff could not have done any
more prior to filing his lawsuit because he had not been housed at the units to which he was
subsequently transferred. Here, plaintiff could have completed the grievance procedure with
respect to events at the Stiles Unit prior to filing this case. As a result, Moussazdeth does not
support the conclusion that the grievances attached to the complaint are sufficient.
With respect to grievance number 2018064007, plaintiff states that his Step 1 grievance was
returned to him as being redundant of grievance number 2018050462, and states the grievance
procedure does not give an inmate a way to file a Step 2 grievance when a Step 1 grievance is
returned as redundant. He contends that as there was no means for him to file a Step 2 grievance,
his Step 1 grievance should be deemed to have adequately exhausted his administrative remedies.
Administrative remedies are not considered to be exhausted unless a prisoner pursued his
grievance through the conclusion of a multi-step administrative procedure.

Wright v.

Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001). Plaintiff states the grievance procedure does
not permit a Step 1 grievance rejected as redundant to be appealed. However, he admits he filed
a Step 2 grievance. He was then required to wait until the period for prison officials to respond
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to the Step 2 grievance elapsed before filing this lawsuit. Underwood v. Wilson, 151 F.3d 292,
295 (5th Cir. 1998) (a prisoner is considered to have pursued his grievance remedies to conclusion
as of the date the time period for the prison to respond to the grievance expired).
Moreover, the fact that plaintiff’s Step 1 grievance for grievance number 2018064007 was
rejected as redundant prevents the conclusion that the Step 1 grievance satisfied the exhaustion
requirement. Prisoners are required to exhaust their administrative remedies in a procedurally
correct manner. Dillon v. Rogers, 596 F.3d 260, 268 (5th Cir. 2010). As plaintiff’s Step 1
grievance was rejected as redundant, it was not filed in a procedurally correct manner.
ORDER
Accordingly, the objections filed by plaintiff are OVERRULED. The findings of fact and
conclusions of law of the magistrate judge are correct, and the report of the magistrate judge is
ADOPTED. The motions for summary judgment are GRANTED. A final judgment shall be
entered dismissing this lawsuit.
SIGNED at Beaumont, Texas, this 29th day of January, 2021.

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MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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