Williams v. Morrison et al

Filing 40

MEMORANDUM ORDER adopting 34 Report and Recommendation and granting 31 Motion for Summary Judgment. Signed by Judge Ron Clark on 9/2/16. (tkd, )

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

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v.

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WILLIAM MORRISON, ET AL.

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CIVIL ACTION NO. 6:14cv884

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Arthur Williams, an inmate of the Texas Department of Criminal Justice,
Correctional Institutions Division proceeding pro se, filed this civil rights lawsuit under 42 U.S.C.
§1983 complaining of alleged violations of his constitutional rights. This Court ordered that the case
be referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the
Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States
Magistrate Judges. The named Defendants are TDCJ-CID Officers William Morrison and Rutillio
Callabero.
I. Background
Williams asserts that on October 11, 2012, he was supposed to be placed on a medical bus
going from the Beto Unit to the Byrd Unit. He told Morrison, a transportation officer, that he had
a “single man cuff pass,” which allowed him to be handcuffed alone for medical reasons.
When Williams showed Morrison the pass, the officer became angry and cursed at him.
Morrison then grabbed his arm and jerked it several times while trying to handcuff Morrison to other
prisoners, dislocating Williams’ shoulder. Williams asked for medical attention but Morrison denied
it. Williams then asked Officer Callabero, who witnessed the entire incident, to be allowed to go
to the medical department, but Callabero denied this request. Williams rode to the Byrd Unit in pain
and told officers there about the incident when he arrived. He then received medical care.
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According to Williams, he filed Step One grievance no. 2013026670 about this incident on
October 16, 2012, and then filed Step One grievance no. 2013042759 about the incident on
November 6, 2012. He stated that he filed a Step Two grievance appeal of no. 2013042759 on
January 14, 2013, but this appeal was never returned to him.
II. The Defendant’s Motion for Summary Judgment and the Plaintiff’s Response
Morrison answered the lawsuit and filed a motion for summary judgment based on failure
to exhaust administrative remedies. Morrison asserted that grievance no. 2013026670 was returned
unprocessed as illegible or incomprehensible and because it sought inappropriate relief, in that
Williams asked that charges be filed against Morrison.
Grievance no. 2013042759 complained about the incident and the response was that
Williams presented an altered lay-in which was not a medical pass and there was no evidence
showing that Morrison acted inappropriately. This response was returned to Williams on December
6, 2012. According to Morrison, there is no record that Williams filed a Step Two appeal of this
grievance.
In his response, Williams again contended that he filed a Step Two appeal of grievance no.
2013042759 on January 14, 2013, which was never returned to him and that in any event, grievance
no. 2013026670 was completely exhausted. He maintained that he diligently pursued his
administrative remedies and states that he should not be held accountable because the prison staff
lost or misplaced his grievance appeal.
Williams points to two other grievances which he filed, no. 2013121257 and 2013088836.
In grievance no. 2013121257, Williams complains that his grievances are being lost. The response
stated that Williams was interviewed by a unit grievance investigator named Peacock and told that
he had not filed a Step Two appeal on no. 2013042759, and that two other grievances which he filed
were screened (returned unprocessed) appropriately. He filed a Step Two appeal of this grievance
and the response stated that there was no record of receiving a Step Two appeal on no. 2013042759.

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Grievance no. 2013088836 complained about the use of force incident and was returned unprocessed
because it was redundant to no. 2013042759.
Morrison argued in his reply to this response that even if a Step Two appeal was filed,
Williams stated that he filed this appeal on January 14, 2013, which was out of time, and thus would
not have exhausted his administrative remedies.
III. The Report of the Magistrate Judge
After review of the pleadings and the summary judgment evidence, the Magistrate Judge
issued a Report recommending that the motion for summary judgment be granted. The Magistrate
Judge observed that prisoners are required to exhaust available administrative remedies before filing
suit and that proper exhaustion is required, meaning that the prisoner must comply with all
administrative deadlines and procedural rules. Dillon v. Rogers, 596 F.3d 260, 268 (5th Cir. 2010).
Grievances must be pursued through all levels of the process to be considered exhausted. Johnson
v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004).
The summary judgment evidence showed that Williams’ first grievance about the incident,
no. 2013026670 was returned unprocessed for procedural violations, in that it was illegible or
incomprehensible and sought inappropriate relief. He also filed a later grievance, no. 2013088836,
which was returned unprocessed because it was redundant to no. 2013042759. The Magistrate
Judge observed that grievances which are returned unprocessed for procedural violations do not
exhaust a prisoner’s administrative remedies, and a prisoner’s claim that prison officials improperly
processed his grievance also does not excuse the exhaustion requirement. In addition, the Magistrate
Judge stated that a Step Two appeal cannot be filed from a Step One grievance which was returned
unprocessed. In any event, Williams did not allege that he filed a Step Two appeal from grievance
no. 2013026670, which thus cannot serve to exhaust his administrative remedies.

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Instead, Williams filed another Step One grievance about the incident, no. 2013042759. This
grievance was processed and a response given to him on December 6, 2012. Williams claimed that
he filed a Step Two appeal from this grievance, but the prison records contain no record of such an
appeal.
The Magistrate Judge stated that conclusory allegations that a prisoner filed grievances
which were not answered are insufficient to evade the exhaustion requirement. Thus, Williams’
unsubstantiated claim that he filed an appeal of grievance no. 2013042759 was not sufficient to
show that he had exhausted his administrative remedies.
Even if Williams’ assertion is taken as true, however, the Magistrate Judge determined that
he still failed to show proper exhaustion of administrative remedies. Grievance no. 2013042759 was
returned to Williams on December 6, 2012, and he claimed that he filed his Step Two appeal on
January 14, 2013. TDCJ regulations require that a Step Two appeal be filed within 15 days of the
return of the grievance, meaning that Williams missed the deadline by over three weeks. See TDCJ
Offender Orientation Handbook, p. 74 (stating that prisoners “have 15 days from the ‘date returned
to the offender’ noted in the ‘OFFICE USE ONLY’ box on the front of the grievance form to submit
the Step 2 to the grievance investigator in the unit.”) Because Williams did not properly exhaust his
administrative remedies in that he failed to comply with the deadlines even if he did file a Step Two
appeal as he alleged, the Magistrate Judge determined that Morrison’s motion for summary
judgment was meritorious.1
IV. Williams’ Objections to the Report
Williams’ objections to the Magistrate Judge’s Report read, in their entirety, as follows:
The Plaintiff Arthur Williams, an inmate of the Texas Department of Criminal
Justice, Institutional Division proceeding pro se, filed this civil rights lawsuit under
42 U.S.C. §1983 complaining of alleged deprivations of his constitutional rights.

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Although Callabero did not join in Morrison’s motion for summary judgment, the
Magistrate Judge concluded that this motion operated to Callabero’s benefit as well. Lewis v. Lynn,
236 F.3d 766, 768 (5th Cir. 2001).
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The lawsuit has been referred to the United States Magistrate Judge. The named
defendants are Officers William Morrison and Rutillio Callabero. Plaintiff now files
his objections to the Magistrate’s Report.
In this case, defendants filed their summary judgment motion arguing that Plaintiff
failed to exhaust his administrative remedies to satisfy the exhaustion requirement.
Plaintiff argues that he submitted several grievances complaining of the alleged
violations. Some of these grievances were lost or misplaced by the Grievance
Committee and never returned to Plaintiff. Plaintiff has admitted several copies of
his grievances to show that he has attempted to exhaust his administrative remedies.
He has also asserted that some of these grievances were lost by officials while he was
on medical chain and gone from the prison unit. Plaintiff has brought this problem
to prison staff and the court. While being gone from the prison on medical chain, his
grievances are not being returned to him and staff are losing his grievances.
The fact that Plaintiff has filed so many grievances trying to address this matter
should be considered in this matter. Plaintiff also respectfully request that if his
complaint is dismissed for failure to exhaust that he be allowed to exhaust his
administrative remedies and re-file his complaint. In other words, dismiss his
complaint ‘with [sic] prejudice.’
V. Discussion
Williams filed a total of three grievances about the incident, these being no.’s 2013042759,
2013026670, and 2013088836. Of these, the first was answered at the Step One level and the other
two were returned unprocessed. The Magistrate Judge properly determined that grievances which
are returned unprocessed do not exhaust administrative remedies. Robinson v. Wheeler, 338
F.App’x 437, 2009 U.S. App. LEXIS 16519 (5th Cir., July 24, 2009).
Williams properly filed his Step One grievance no. 2013042759 about the incident, but the
summary judgment evidence shows that he did not file a Step Two appeal. As such, this grievance
also did not serve to exhaust his administrative remedies. Johnson, 385 F.3d at 515.
Williams contends that he did file a Step Two grievance appeal, but that it must have been
lost or misplaced. The Magistrate Judge correctly determined that conclusory allegations that a
prisoner filed a grievance which was not answered are not sufficient to show exhaustion. Kidd v.
Livingston, 463 F.App’x 311, 2012 U.S. App. LEXIS 3970 (5th Cir., February 28, 2012); see also
Boudreaux v. Swift Transportation Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005) (litigant cannot
oppose summary judgment with conclusory allegations or unsubstantiated or speculative assertions).

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Even had Williams filed a Step Two appeal as he stated, he concedes that he filed it on
January 24, 2013, well after the 15-day deadline in which to do so. The Magistrate Judge observed
that as such, the Step Two appeal could not have exhausted Williams’ administrative remedies
because proper exhaustion requires following the rules and deadlines of the grievance procedure.
Dillon, 596 F.3d at 268. Williams did not object to this finding.
Instead, he argues that the fact he filed a number of grievances about the incident should be
taken into consideration. However, the summary judgment evidence shows that he did not properly
complete the exhaustion procedure with regard to the alleged use of force incident forming the basis
of the lawsuit. Grievance no. 2013121257 did not complain about the use of force incident but about
how Williams’ grievances were being processed. The Magistrate Judge correctly determined that
Williams failed to exhaust his administrative remedies. Williams’ objections are without merit.
Williams also asks that if the lawsuit is dismissed for failure to exhaust, such dismissal
should allow him to re-file after the process of exhaustion is complete.2 The Fifth Circuit has stated
that
By choosing to file and pursue his suit prior to exhausting administrative remedies
as required, Underwood sought relief to which he was not entitled—that is, federal
court intervention in prison affairs prior to the prison having had the opportunity to
address the complaint within its grievance procedures. We therefore affirm the
district court's order dismissing Underwood's action with prejudice for purposes of
proceeding IFP.
Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir. 1998) (overruled by implication on other grounds
in Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 921, 166 L.Ed.2d 798 (2007). In the same way,
Williams sought federal court intervention in prison affairs before the prison officials had the
opportunity to address his complaint within the grievance procedures. Dismissal with prejudice for
purposes of proceeding in forma pauperis is therefore appropriate.

2

Williams refers to this as a “dismissal with prejudice,” but such a dismissal bars the plaintiff
from refiling. A dismissal without prejudice leaves the plaintiff free to re-file the lawsuit. See, e.g.,
Lambert v. U.S., 44 F.3d 296, 298 (5th Cir. 1995).
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VI. Conclusion
The Court has conducted a careful de novo review of those portions of the Magistrate Judge’s
proposed findings and recommendations to which the Plaintiff objected. See 28 U.S.C. §636(b)(1)
(district judge shall “make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.”) Upon such de novo review,
the Court has determined that the Report of the Magistrate Judge is correct and the Plaintiff’s
objections are without merit. It is accordingly
ORDERED that the Plaintiff’s objections are overruled and the Report of the Magistrate
Judge (docket no. 34) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the Defendant’s motion for summary judgment (docket no. 31) is
GRANTED and the above-styled civil action is DISMISSED WITH PREJUDICE for purposes
of proceeding in forma pauperis for failure to exhaust administrative remedies. It is further
ORDERED that any and all motions which may be pending in this action are hereby
DENIED.

So Ordered and Signed
Sep 2, 2016

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