Howard v. Davis et al

Filing 42

MEMORANDUM OPINION and Order of dismissal. Ordered that Davis' motion for summary judgment limited to the defense of exhaustion of administrative remedies (docket entry #39) is granted. Ordered that the complaint is dismissed with prejudice. Ordered that all motions not previously ruled on are denied. Signed by Magistrate Judge Judith K. Guthrie on 5/30/2013. (bjc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

PATRICK JAMES HOWARD, #1527296

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VS.

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A. DAVIS, ET AL.

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CIVIL ACTION NO. 6:12cv913

MEMORANDUM OPINION AND
ORDER OF DISMISSAL
Plaintiff Patrick James Howard, a prisoner previously confined at the Skyview Unit of the
Texas prison system, proceeding pro se and in forma pauperis, filed this civil rights lawsuit pursuant
to 42 U.S.C. § 1983. The sole remaining defendant is Officer Andrew Davis. The complaint was
transferred to the undersigned with the consent of the parties pursuant to 28 U.S.C. § 636(c).
The present Memorandum Opinion concerns Davis’ motion for summary judgment limited to
the defense of exhaustion of administrative remedies (docket entry #39) and Howard’s response
(docket entry #40).
Facts of the Case
The original complaint was filed on November 27, 2012. On February 7, 2013, the Court
conducted an evidentiary hearing in accordance with Spears v. McCotter, 766 F.2d 179, 182 (5th Cir.
1985). Howard complained about an incident that occurred on May 12, 2012. Officers Davis and
Thigpen were working in Howard’s housing area. Davis opened the food slot to Howard’s cell and
offered him a food tray, but the food tray was incorrect because it included tomatoes. Howard is
allergic to tomatoes. He accepted the tray, but he asked to see a supervisor. Davis responded by
throwing the food tray on the floor in the hallway. Howard had his hand in the food slot opening at

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the time. Officer Thigpen told Howard to take his hand out of the food slot and she would take care
of the matter. In the mean time, Davis walked back towards Howard’s cell. Instead of calling a
supervisor, Davis attempted to slam the food slot door on Howard’s arm. Howard replied, “That’s a
use of force. You have to call for the supervisor.” Davis, however, grabbed his arm and pulled it
upward until it popped. Thigpen responded by calling out Davis’ name. Realizing what he had just
done, Davis exclaimed, “Offender let me go or I’m going to gas you!” Davis then took out a can of
OC gas, shook it up and sprayed Howard. Davis proceeded to call a supervisor and reported that
Howard had assaulted him. Howard denied assaulting Davis; nonetheless, he received a disciplinary
case for assaulting him.
Howard filed a Step 1 grievance about the use of force incident. He filed a second Step 1
grievance after he received the disciplinary case. He complained that Officer Brooks, a grievance
officer, returned the second grievance as redundant.

Howard testified that the first grievance

concerned the use of force incident, while the second grievance concerned the disciplinary case. He
complained that Brooks did not process his second Step 1 grievance. He also complained that he never
received a response from the first Step 1 grievance in order to file a Step 2 grievance.
Regional Grievance Officer Karen Norman testified that grievance records reveal that Howard
exhausted his administrative remedies about the disciplinary case in August 2012. In May 2012 he
filed a Step 1 grievance about the use of force incident. He subsequently filed a second Step 1
grievance, which was returned as redundant. She noted that he was supposed to wait until after the
disciplinary proceeding was actually concluded to file a Step 1 grievance about the disciplinary case.
Howard gave the Court permission to review his prison records. The records reveal that he
filed a Step 1 grievance about the use of force incident in Grievance Number 2012160515. Assistant
Warden Webb filed the following reply: “A copy of your grievance has been included with the UOF

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report (MO-02513-05-12) for further review.” The second Step 1 grievance was dated May 16, 2012,
which was returned by Defendant Brooks as redundant to 2012160515 on May 17, 2012.
The records also included the disciplinary records filed as a result of the incident. Howard was
charged with assaulting Officer Davis by grabbing his left arm in Case Number 20120251494. He
received a copy of the charges on May 15, 2012. He was found guilty on the following day. Howard
was subsequently permitted to file a grievance about the disciplinary case beyond the normal deadlines.
Grievance records reveal that the disciplinary case was upheld at both the Step 1 and Step 2 levels.
On February 19, 2013, the Court issued an order permitting Howard to proceed with his
excessive use of force claim against Davis. His remaining claims were dismissed pursuant to 28
U.S.C. § 1915A(b)(1).
Defendant’s Motion for Summary Judgment
On May 13, 2013, Davis filed a motion for summary judgment limited to the defense of
exhaustion of administrative remedies (docket entry #39). In support of the motion, he attached copies
of the applicable grievance records. The grievance records once again showed that Howard filed a
Step 1 grievance about the use of force incident in Grievance Number 2012160515. Assistant Warden
Webb responded to the grievance. There is no record that Howard filed a Step 2 grievance regarding
the use of force incident. On the other hand, he filed Step 1 and Step 2 grievances complaining about
the disciplinary case in Grievance Number 2012208386.
Davis correctly noted that inmates are required to exhaust their administrative remedies by 42
U.S.C. § 1997e. He noted that the Texas prison system has a two-step formal grievance process.
Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004). Inmates must complete both steps to properly
exhaust their claims. Id. Inmates are limited to pursuing a single issue per grievance. Randle v.
Woods, 299 Fed. Appx. 466, 467 (5th Cir. 2008). He asserted that the competent summary judgment

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evidence reveals that Howard filed only a Step 1 grievance about the excessive use of force claim.
Howard properly exhausted his disciplinary claim, but he did not exhaust his excessive use of force
claim. Davis argued that the excessive use of force claim should be dismissed for failure to exhaust
administrative remedies.
Plaintiff’s Response
Howard filed a response (docket entry #40) on May 24, 2013. In support of his response, he
attached a copy of an inter-office communication, a use of force report, inpatient nursing progress note
and grievance records. He stated that he made several attempts to file Step 2 grievances, although he
did not submit competent summary judgment evidence supporting his statement. He alleged that the
unit “swep[t] it under the rug once the plaintiff was no longer on the unit.” The remainder of his
response addressed the merits of his claim, as opposed to the issue of exhaustion. He also included
a request for appointment of counsel.
Discussion and Analysis
A “court shall grant summary judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The moving party for summary judgment has the burden of proving the lack of a genuine
dispute as to all the material facts. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Galindo v.
Precision American Corp., 754 F.2d 1212, 1221-23 (5th Cir. 1985).
In deciding a motion for summary judgment, the Court must make a threshold inquiry in
determining whether there is a need for a trial. “In other words, whether there are any genuine factual
issues that properly can be resolved only by a finder of fact because they may reasonably be resolved
in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “[T]he mere
existence of some alleged factual dispute between the parties will not defeat an otherwise properly

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supported motion for summary judgment; the requirement is that there be no genuine issue of material
fact.” 477 U.S. at 247-48.
If the movant satisfies its initial burden of demonstrating the absence of a material fact dispute,
then the non-movant must identify specific evidence in the summary judgment record demonstrating
that there is a material fact dispute concerning the essential elements of its case for which it will bear
the burden of proof at trial. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir.
1996). The non-movant cannot survive a motion for summary judgment by resting on the allegations
in his pleadings. Isquith v. Middle South Utilities, Inc., 847 F.2d 186, 199 (5th Cir.), cert. denied, 488
U.S. 926 (1988). Rather, he must direct the court’s attention to evidence in the record sufficient to
establish that there is a genuine issue of material fact for trial. Celotex, 477 U.S. at 324. To carry this
burden, the nonmovant must present evidence sufficient to support a resolution of the factual disputes
in his favor. Anderson, 477 U.S. at 257. The non-movant must submit competent summary judgment
evidence sufficient to defeat a properly supported motion for summary judgment. See, e.g., Burleson
v. Texas Dept. of Criminal Justice, 393 F.3d 577, 589-90 (5th Cir. 2004); Domino v. Texas Dept. of
Criminal Justice, 239 F.3d 752, 755 (5th Cir. 2001).
The law governing the exhaustion of administrative remedies is 42 U.S.C. § 1997e. In 1996,
Congress enacted the Prison Litigation Reform Act (“PLRA”), which mandated that no action shall
be brought by a prisoner “until such administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a). The provision was unanimously upheld by the Supreme Court in Booth v. Churner,
532 U.S. 731 (2001). The Court subsequently held that exhaustion is mandatory and that the
requirement will not be excused when an inmate fails to properly exhaust his administrative remedies.
Woodford v. Ngo, 548 U.S. 81, 84 (2006). Proper exhaustion means that an inmate must not only
pursue all available avenues of relief but must also comply with all administrative deadlines and

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procedural rules. Id. at 90-91. The Fifth Circuit recently reiterated the principle that “[p]re-filing
exhaustion is mandatory, and the case must be dismissed if available administrative remedies were not
exhausted.” Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012).
The Supreme Court elaborated further about the exhaustion requirement in Jones v. Bock, 549
U.S. 199 (2007). It was noted that “[t]here is no question that exhaustion is mandatory under the
PLRA and that unexhausted claims cannot be brought in court.” Id. at 211. It was added, however,
that the “failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required
to specifically plead or demonstrate exhaustion in their complaints.” Id. at 216. In light of Jones v.
Bock, the Fifth Circuit provided guidance concerning how the exhaustion question should be handled
in Dillon v. Rogers, 596 F.3d 260 (5th Cir. 2010). The following procedures were outlined:
As a final matter, we now provide a brief summary of how district courts should approach
exhaustion questions under the PLRA. When the defendant raises exhaustion as an affirmative
defense, the judge should usually resolve disputes concerning exhaustion prior to allowing the
case to proceed on the merits. If the plaintiff survives summary judgment on exhaustion, the
judge may resolve disputed facts concerning exhaustion, holding an evidentiary hearing if
necessary.
Id. at 272-73.
The Texas Department of Criminal Justice provides a two-step procedure for processing
grievances and provides inmates with detailed instructions on how to file grievances. Johnson v.
Johnson, 385 F.3d at 515-16. An inmate must complete both a Step 1 and Step 2 grievance in order
to properly exhaust his administrative remedies. Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir.
2001). Most recently, the Fifth Circuit upheld the grant of summary judgment where the competent
summary judgment evidence revealed that grievances tendered by a Texas prison inmate were returned
as unprocessed because he did not follow prison guidelines for filing grievances and thus had not

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exhausted his administrative remedies. Stout v. North-Williams, 476 Fed. Appx. 763, 765 (5th Cir.
2012).
The competent summary judgment evidence submitted in this case reveals that two claims
arose out of the incident that occurred on May 12, 2012. Howard complained that he was the victim
of excessive use of force. He also complained about the disciplinary case he received for assaulting
Davis.

The competent summary judgment evidence reveals that he knew how to exhaust his

administrative remedies and did so with respect to the disciplinary case. He did not, however, exhaust
his administrative remedies with respect to his excessive use of force claim. He filed two Step 1
grievances, but he did not file a Step 2 grievance. Davis thus correctly argued that he is entitled to
summary judgment based on the defense of exhaustion of administrative remedies with respect to the
excessive use of force claim. It is accordingly
ORDERED that Davis’ motion for summary judgment limited to the defense of exhaustion
of administrative remedies (docket entry #39) is GRANTED. It is further
ORDERED that the complaint is DISMISSED with prejudice. It is finally
ORDERED that all motions not previously ruled on are DENIED.

So ORDERED and SIGNED this 30 day of May, 2013.

____________________________
JUDITH K. GUTHRIE
UNITED STATES MAGISTRATE JUDGE

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