Thomas v. Mills et al

Filing 55

Memorandum Opinion and Order: The court ORDERS that defendants' 32 motion for summary judgment be, and is hereby, granted, and that plaintiff's claims be, and are hereby, dismissed for want of exhaustion. The court further ORDERS that plaintiff's 51 motion to reconsider appointment of counsel be, and is hereby, denied. (Ordered by Judge John McBryde on 1/12/2016) (tln)

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IN THE UNITED STATES DISTRICT cbURT
NORTHERN DISTRICT OF TEXAS r
JAN 2 20/6
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FORT WORTH DIVISION
ANTHONY DESHAWN THOMAS,
Plaintiff,

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vs.
DR. JOHN MILLS, M.D., ET AL.,
Defendants.

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NO. 4:14-CV-009-A

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MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendants, Dr. John
Mills, Debra Peyton, LVN, and Tarrant County Hospital District,
for summary judgment. Plaintiff, Anthony Deshawn Thomas, has
failed to respond to the motion even though he was granted an
extension of time, and has had ample time, in which to do so. The
court, having considered the motion, the summary judgment
evidence, the record, and applicable authorities, finds that the
motion should be granted.
Defendants filed their motion for summary judgment on
October 23, 2015. In addition, defendant Mills filed a motion to
dismiss on October 21, 2015. Rather than respond to the motions,
plaintiff filed a motion for temporary restraining order,
complaining that his legal materials had been confiscated,
interfering with his ability to respond to the motions. By order
signed November 16, 2015, the court ordered that the motions be
held in abeyance pending a ruling on the motion for temporary

restraining order. The court ordered that defendants respond to
plaintiff's allegations regarding interference and gave plaintiff
an opportunity to reply. Defendants responded to the court's
November 16 order, but plaintiff did not reply. Instead, he filed
a motion for extension of time in which to respond to the
motions. The court denied the motion for temporary restraining
order. The court granted plaintiff's motion for extension of time
to respond to the motions to dismiss and for summary judgment,
giving him until December 31, 2015, to respond. To date,
plaintiff has not filed any response to the motions.
On December 9, 2015, plaintiff filed a motion to reconsider
appointment of counsel due to his poor eyesight and that a prior
litigation assistant had stopped helping him. Having considered
defendants' response to the motion and applicable authorities,
the court finds that the request for appointment of counsel
should be denied. Responding to the pending motion for summary
judgment does not require any special skill. Plaintiff knows
whether he exhausted his administrative remedies and could easily
have stated the facts in support of his position had he chosen to
do so. Plaintiff has repeatedly shown that he is able to
effectively communicate with the court. Exceptional circumstances
do not exist and appointment of counsel here would not advance

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the proper administration of justice. Ulmer v. Chancellor, 691
F.2d 209, 213

(sth

Cir. 1982).

The summary judgment evidence establishes that plaintiff did
not exhaust his administrative remedies while confined in the
Tarrant County jail. One of the documents submitted by plaintiff
in support of his complaint confirms his failure to exhaust
remedies. Doc. 1 1 at 54

(letter from Texas Commission on Jail

Standards in response to plaintiff's complaint after he was
transferred from Tarrant County Jail noting his failure to
exhaust) .
The law applicable to lawsuits brought by prisoners requires
that no action be brought until administrative remedies are
exhausted. 42

u.s.c.

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1997e(a). Exhaustion of remedies before

filing suit is mandatory. Porter v. Nussle, 534 U.S. 516, 524
(2002). Unexhausted claims cannot be pursued. Gonzalez v. Seal,
702 F.3d 785, 788

(sth

Cir. 2012). Accordingly, the court is

granting defendants' motion for summary judgment and dismissing
plaintiff's claims. 2

'The "Doc." reference is to the number assigned the document on the court's docket in this
action.
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The court need not consider the motion to dismiss.
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The court ORDERS that defendants' motion for summary
judgment be, and is hereby, granted, and that plaintiff's claims
be, and are hereby, dismissed for want of exhaustion. The court
further ORDERS that plaintiff's motion to reconsider appointment
of counsel be, and is hereby, denied.
SIGNED January 12, 2016.

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