Rodriguez, Jr. v. Touhami et al

Filing 22

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING 19 REPORT AND RECOMMENDATIONS. Signed by District Judge Thad Heartfield on 9/19/22. (ljw, )

Case 9:20-cv-00140-TH-CLS Document 22 Filed 09/19/22 Page 1 of 3 PageID #: 459

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
FRANK W. RODRIGUEZ, JR.

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VS.

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MOHAMAD TOUHAMI, ET AL.

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CIVIL ACTION NO. 9:20cv140

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff Frank W. Rodriguez, Jr., an inmate formerly at the Lewis Unit of the Texas
Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, brought the
above-styled lawsuit.
The court referred this matter to the Honorable Christine L. Stetson, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court.
The magistrate judge recommends granting the defendant’s motion for summary judgment and
dismissing the complaint.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such referral, along with the record and pleadings. Plaintiff filed
objections to the magistrate judge’s Report and Recommendation. This requires a de novo review
of the objections in relation to the pleadings and the applicable law. See FED. R. CIV. P. 72(b).
After careful review and consideration, the court concludes plaintiff’s objections are without
merit. Plaintiff contends he should be excused from the exhaustion requirement in this case because
his attempts to obtain grievance forms were thwarted by prison officials. In his complaint, plaintiff
stated he was not able to utilize the grievance remedy system for several weeks following the alleged

Case 9:20-cv-00140-TH-CLS Document 22 Filed 09/19/22 Page 2 of 3 PageID #: 460

use of excessive force because guards would not give him any grievance forms and his property was
confiscated, leaving him without a pen or the ability to buy writing supplies for six months. (ECF
No. 2 at *11-12). Additionally, in response to the defendant’s motion for summary judgment,
plaintiff stated he could not procure a grievance form until late October, 2015. (ECF No. 15 at *12).
However, plaintiff’s allegations that prison officials attempted to thwart his exhaustion are contrary
to the Step One grievance form itself which plaintiff signed and dated on May 22, 2015. (ECF Nos.
2-1 at *35-36 and 9-1 at *23). Further, plaintiff has failed to provide an explanation to excuse the
excessive delay of almost two years, from May 22, 2015 until February 14, 2017, before he
submitted his Step One grievance on February 14, 2017, especially in light of his prolific use of the
grievance procedure for other issues during the same period of time.
There is no competent summary judgment evidence before the court showing plaintiff
properly exhausted the available grievance procedure by timely submitting a grievance in a
procedurally correct manner through all steps of the grievance procedure prior to filing this action.
Nor does the record demonstrate plaintiff should be excused from the exhaustion requirement.
Accordingly, the defendant’s motion for summary judgment should be granted.
ORDER
Accordingly, plaintiff’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 ADOPTED. It
is therefore

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Case 9:20-cv-00140-TH-CLS Document 22 Filed 09/19/22 Page 3 of 3 PageID #: 461

ORDERED that the defendant’s motion for summary judgment is GRANTED. A final
judgment will be entered in this case in accordance with the magistrate judge’s recommendations.
SIGNED this the 19 day of September, 2022.

____________________________
Thad Heartfield
United States District Judge

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