Wilson Jr. v. Bradshaw
MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S 35 REPORT AND RECOMMENDATION. Signed by Judge Ron Clark on 9/22/17. (ljw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LAJOHN F. WILSON, JR.
SAMUEL A. BRADSHAW
CIVIL ACTION NO. 9:16-CV-112
MEMORANDUM ORDER OVERRULING OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Lajohn F. Wilson, Jr., a prisoner confined at the Polunsky Unit of the Texas
Department of Criminal Justice, Correctional Institutions Division, proceeding pro se and in forma
pauperis, brings this action pursuant to 42 U.S.C. § 1983 against defendant Samuel A. Bradshaw.
The court referred this matter to the Honorable Keith Giblin United States Magistrate Judge,
at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court. The
Magistrate Judge recommends defendant Bradshaw’s 12(b)(6) Motion to Dismiss for failure to
exhaust administrative remedies be denied.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the record, and pleading. Defendant
Bradshaw filed objections to the Report and Recommendation of United States Magistrate Judge.
This requires a de novo review of the objections in relation to the pleadings and applicable law. See
FED. R. CIV. P. 72(b). As outlined below, the court finds the objections lacking in merit.
Factual & Procedural Background
On May 25, 2016, plaintiff alleges defendant Bradshaw “forced” him in a shower that was
flooded with ankle-deep water that contained human waste. Plaintiff complained to a supervisor and
was removed from the shower and told to write a medical sick call request. Plaintiff alleges he
suffered itching of his feet and was ultimately prescribed medication for athlete’s foot.
In plaintiff’s original complaint, he states he has exhausted his administrative remedies.
Specifically, plaintiff alleges he wrote a grievance on May 27, 2016, complaining of the incident and
handed the grievance to Ashley Crawford for processing. When plaintiff did not receive a response,
he alleges he wrote an I-60 on June 13, 2016, requesting the case number for the grievance. In
response, the grievance department stated they had no grievance on file since 2015. Plaintiff then
argues he filed an I-60 form explaining that he handed his grievance to Ashley Crawford. When
plaintiff failed to get a response to the second I-60, he argues he filed another Step 1 grievance
complaining that Ashley Crawford destroyed the grievance. Plaintiff contends this grievance was
not processed either and argues he cannot properly exhaust when the grievance department is
interfering with his paperwork.
Defendant Bradshaw filed a Motion to Dismiss for failure to exhaust administrative remedies
pursuant to Federal Rule of Civil Procedure 12(b)(6). In the motion, defendant Bradshaw argues
plaintiff did not properly exhaust his administrative remedies and states specifically, “[w]hen he
received the response that his Step 1 had not been received, Offender Wilson was put on notice that
he needed to re-submit his Step 1 grievance. At this point, it was up to Offender Wilson to re-submit
the Step 1 grievance and appeal through a Step 2 grievance in the event that he found the response
to his Step 1 grievance unacceptable.”
The Magistrate Judge entered a Report and Recommendation on August 10, 2017,
recommending the motion to dismiss be denied as defendant Bradshaw did not address plaintiff’s
allegation that the grievance department was interfering in his ability to exhaust his administrative
remedies. In addition, the Magistrate Judge concluded that based on the present record, the
Magistrate Judge could not determine what proper procedure required under these circumstances.
In addition, the Magistrate Judge found that because exhaustion is an affirmative defense, the
defendant has the burden of proving plaintiff did not exhaust his administrative remedies and that
the court was bound to accept all well-pleaded facts as true, viewing them in the light most favorable
to the plaintiff.
Defendant Bradshaw filed objections to the Report and Recommendation on August 18,
2017. Acknowledging the fact that the court must accept all well-pleaded facts as true, defendant
Bradshaw argues that doing so in this case should not defeat defendant’s motion to dismiss.1
Defendant Bradshaw cites to the PLRA and case law that establish that unexhausted claims cannot
be filed in federal court and outlines TDCJ policy and procedure for exhaustion of administrative
remedies. In support of the motion to dismiss, defendant Bradshaw attaches as exhibits the TDCJ
Offender Orientation Handbook that outlines these procedures.
Defendant Bradshaw complains that he does not have to address plaintiff’s allegation that
the grievance department was interfering in his ability to exhaust “by either not processing, losing
or intentionally destroying his grievance.” Even if true, defendant Bradshaw contends that the
allegations are inconsequential and/or conclusory. Defendants cite to Hicks and Wilson for the
proposition that regardless of whether plaintiff received a response to his step 1 grievance, he was
still required to file a step 2 grievance.2 Hicks v. Garcia, 372 F. App’x 557, 558 (5th Cir. 2010);
Wilson v. Epps, 776 F.3d 296 (5th Cir. 2015).3 Defendant states that the Fifth Circuit does not
require TDCJ’s policy to explicitly state that the offender should proceed to the step 2 appeal if he
did not receive a response to his step 1 as the Fifth Circuit has previously held that “available
administrative remedies are exhausted when the time limits for the prison’s response set forth in the
Grievance Procedures have expired.” Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998)
(overruled on other grounds).
Defendant Bradshaw cites to Sonnier v. State Farm Mutual Auto. Ins. Co., 509 F.3d 673, 375 (5th Cir. 2007)
In Sonnier, the Fifth Circuit Court of Appeals upheld the district court’s dismissal of plaintiff’s claim pursuant to Federal
Rule of Civil Procedure 12(b)(6) based on the contractual agreement to repair. Id., pg. 675.
As discussed infra, the process now cited in the objections is different than the process outlined in the original
motion to dismiss.
Defendant Bradshaw complains that the Magistrate Judge did not analyze nor cite to Hicks and Wilson in
denying the motion to dismiss. The court notes that neither case was cited nor analyzed in the defendant’s original
motion to dismiss and, for reasons outlined below, can be distinguished from the underlying facts of this case.
Because defendants now rely on evidence in support of the motion to dismiss, this court
coverts the motion to dismiss to a motion for summary judgment pursuant to Federal Rule of Civil
Procedure 12(d). Summary judgment is appropriate when 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). Courts
must consider the record as a whole, including all pleadings, depositions, affidavits, interrogatories
and admissions on file, in the light most favorable to the non-movant. Caboni v. Gen. Motors Corp.,
278 F.3d 448, 451 (5th Cir. 2002).
The party seeking summary judgment bears the initial burden of demonstrating an absence
of a genuine issue of material fact and informing the court of the basis for its motion by identifying
those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and
affidavits, if any, which support its contention. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Williams v. Adams, 836 F.2d 958, 960 (5th cir. 1988). Any controverted evidence must be viewed
in the light most favorable to the non-movant, and all reasonable doubts must be resolved against
the moving party. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990).
If the moving party makes the required showing, then the burden shifts to the non-movant
to show that a genuine issue of material fact remains for trial. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 585-87 (1986); Fields v. City of S. Houston, 922 F.2d 1183, 1187 (5th
Cir. 1991) (citation omitted). The non-movant cannot merely rest on the allegations of the pleadings,
but must establish that there are material controverted facts in order to preclude summary judgment.
FED. R. CIV. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986) (citation
omitted). Summary judgment is proper if the non-movant fails to make a showing sufficient to
establish the existence of an element essential to his case on which he bears the burden of proof.
Celotex, 477 U.S. at 322-23; ContiCommodity Servs., Inc. v. Ragan, 63 F.3d 438, 441 (5th Cir. 1995)
(citations omitted). Furthermore, there must be adequate proof in the record showing a real
controversy regarding material facts. “Conclusory allegations,” unsubstantiated assertions, or the
presence of a “scintilla of evidence” is not enough to create a real controversy regarding material
facts. See, e.g. Lujan v. National Wildlife Federation, 497 U.S. 871, 902; Hopper v. Frank, 16 F.3d
92, 96-97 (5th Cir. 1994), Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1086 (5th Cir. 1994). In the
absence of proof, the court does not “assume that the nonmoving party could or would prove the
necessary facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
Because exhaustion is an affirmative defense, the burden is on defendant Bradshaw to
demonstrate that plaintiff failed to exhaust his administrative remedies. Dillon v. Rogers, 596 F.3d
260 (5th Cir. 2010) (citing Jones v. Bock, 549 U.S. 199, 216 (2007)).4 Consequently, defendant
Bradshaw “must establish beyond peradventure all of the essential elements of the defense of
exhaustion to warrant summary judgment in their favor.” Id. (citing Martin v. Alama Cmty. Coll.
Dist., 353 F.3d 409, 412 (5th Cir. 2003).
In relying on Hicks and Wilson, defendant Bradshaw overlooks the fact that neither case
involved allegations that prison officials were interfering in the plaintiffs’ ability to exhaust
administrative remedies. See Hicks v. Garcia, 372 F. App’x 557 (5th Cir. 2010 (not designated for
publication); Wilson v. Epps, 776 F.3d. 296 (5th Cir. 2015).5 Although the Fifth Circuit takes a
“strict approach” to the PLRA’s exhaustion requirement, the Fifth Circuit has recognized that the
failure to exhaust may be excused when grievance officials “ignore or interfere with a prisoners
pursuit of relief.” Thomas v. Prator, 172 F. App’x 602, 603 (5th Cir. 2006) (per curiam) (not
“[F]actual disputes concerning exhaustion may be resolved by judges. However, we also conclude that when
courts rule on exhaustion on the basis of evidence beyond the pleadings, the nonmoving party should be granted the
protections of Rule 56. Consequently, we find that the district court did not err in converting Appellees’ motion into a
motion for summary judgment under Rule 12(d).” Id., pg. 271.
Hicks merely alleged the Tarrant County Jail did not maintain a two-step grievance procedure and that Tarrant
County Jail officials never responded to his three grievances. Hicks, 372 F. App’x at 558. The Fifth Circuit noted that,
contrary to plaintiff’s belief, the Tarrant County Jail had an established two-step procedure for presenting grievances and
plaintiff only exhausted the first step. Id. Wilson argued that the Mississippi prison’s failure to respond to his ten
grievances and the 90 day period to process his grievances excused his non-exhaustion. Wilson, 776 F.3d at 299. In
Wilson, the Fifth Circuit noted that Wilson’s remedies were not exhausted unless Wilson proceeded through all three
steps of the program’s process even if MDOC failed to respond at either of the preliminary steps. Id. at 302. In both
cases, the Fifth Circuit noted that it had already approved of the grievance process for both facilities. There was no
allegation that the grievances filed by Hicks and Wilson were not actually received by the grievance department; rather,
it would appear they were received but no formal response was given.
designated for publication); Johnson v. Ford, 261 F. App’x 752, 755 (5th Cir. 2008) (not designated
for publication) (both citing Holloway v. Gunnell, 685 F.2d 150, 154 (5th Cir. 1982)).
Based on the present record, this court cannot determine whether the administrative remedies
were, in fact, “available” to plaintiff. First, as outlined above, defendant Bradshaw has given two
responses as to what plaintiff should have done in order to properly exhaust his administrative
remedies despite not receiving a response and determining his grievances had not been received
and/or processed (and alleging they were intentionally lost or destroyed). In the motion to dismiss,
defendant Bradshaw states plaintiff should have filed another step 1 and proceeded through the step
2 process. In his objections, however, defendant Bradshaw states plaintiff should have filed a step
2 to his step 1 regardless of not having received a response and being told the grievance department
had no record of the grievance. This discrepancy alone is sufficient to indicate there is at least some
confusion as to what the proper procedure is in this type of situation.
Furthermore, plaintiff’s allegations of unavailability or interference in the grievance process
are not conclusory; plaintiff provides a factual basis to support this allegation. In addition plaintiff’s
original complaint is sworn to under penalty of perjury and is verified and is considered competent
summary judgment evidence. Hart v. Hairston, 343 F.3d 762, 765 (5th Cir. 2003) (“On summary
judgment, factual allegations set forth in a verified complaint may be treated the same as when they
are contained in an affidavit.”) (citing Huckabay v. Moore, 142 F.3d 233, 240 n. 6 (5th Cir. 1998));
King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994)).
Finally, if the court follows defendant Bradshaw’s logic, proper procedure and/or case law
requires plaintiff to file another step 1 and/or a step 2 to the original step 1 and then continue to turn
them in to the same grievance personnel he alleges intentionally lost and/or destroyed his original
grievances.6 Defendant Bradshaw conveniently ignores plaintiff’s allegations that after he was told
The court acknowledges that the Fifth Circuit has held that “available administrative remedies are exhausted
when the time limits for the prison’s response set forth in the prison Grievance Procedures have expired.” Underwood
v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998) (overruled on other grounds). However, this assumes the grievances were
actually received and/or acknowledged as received by the relevant grievance department. In Underwood, plaintiff timely
filed his grievances and appeals at each step of the TDCJ process but failed to receive a final response from the Deputy
by the grievance department that they had no record of his grievance, he filed an I-60 explaining that
he handed his original step 1 grievance to Ashley Crawford. As outlined above, plaintiff alleges
further he failed to get a response to the second I-60 and then filed another Step 1 grievance
complaining that Ashley Crawford destroyed the grievance which also went unprocessed. If there
is another procedure to follow in such a situation, the defendant does not say. The Offender
Orientation Handbook also does not say:
Grievance forms are available from the law library, housing area, shift
supervisor, or by contacting the unit grievance office. After
completely filling out the form, place it in the grievance box yourself
or hand it directly to the grievance investigator in your unit. Step 2
appeals must be accompanied by the original, answered Step 1.
At attempt to informally resolve your problem must be made before
filing a grievance. Information resolution is defined as any attempt to
solve the issue at hand and must be noted on the Step 1 grievance form
(I-127). You have 15 days from the date of the alleged incident or
occurrence of the issue presented in which to complete the Step 1
grievance form and forward it to the unit grievance investigator (UGI).
The Step 1 process may take up to 40 days from the date the unit
grievance office receives the Step 1 form to respond or 45 days for
medical grievances. If you are not satisfied with the Step 1 response,
you may appeal the Step 1 decision by filing a Step 2 (I-128). You
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 on the unit. The Step
2 process may take up to 40 days to provide you a written response or
45 days for medical grievances.
Exhibit A, pg. 4 (docket entry no. 37-1) (emphasis added in original).7
Based on the foregoing, this court finds there is a genuine dispute of material fact as to
whether the grievance process was available. See Dillon v. Rogers, 596 F.3d 260, 267 (5th Cir. 2010)
(unable to determine whether administrative remedies were “available” for Dillon because the record
was not sufficiently developed).
If plaintiff were to follow the policy outlined above, he could not have complied regardless. Policy states that
“Step 2 appeals must be accompanied by the original, answered Step 1.”
Accordingly, defendant Bradshaw’s objections are OVERRULED. The findings of fact and
conclusions of law of the Magistrate Judge are correct, and the report of the Magistrate Judge is
So ORDERED and SIGNED this 22 day of September, 2017.
Ron Clark, United States District Judge
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