George v. Snearly et al
MEMORANDUM OPINION AND ORDER granting 52 MOTION for Summary Judgment for Failure to Exhaust Administrative Remedies, denying 53 MOTION to Enforce To Comply with a Full Disclosure. This action is dismissed with prejudice. (Signed by Judge Sim Lake) Parties notified.(gclair, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
TYRONE EUGENE GEORGE,
JUSTIN L. SNEARLY and
STACY W. STEWART,
February 02, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-15-3092
MEMORANDUM OPINION AND ORDER
State inmate Tyrone Eugene George (TDCJ #1905218) has filed an
amended complaint under 42 U.S. C.
(Docket Entry No. 10), alleging that his civil rights were violated
at the Ellis I Unit of the Texas Department of Criminal Justice
( "TDCJ") .
allegations that Officer Justin L. Snearly and Sergeant Stacy W.
Pending before the court is Defendants Snearly and
Administrative Remedies ("Defendants' MSJ")
(Docket Entry No. 52) .
George has filed Plaintiff's Response to Defendants['] Motion for
("Plaintiff's Response to MSJ")
George has also filed Plaintiff's Demand that Defendants
disciplinary, classification, and grievance records associated with
considering all of the pleadings, the court will grant Defendants'
MSJ and will dismiss this case for the reasons explained below.
As noted above,
the only defendants who remain in this case
are Officer Snearly and Sergeant Stewart. 1
George contends that
Officer Snearly used excessive force against him in May of 2015 2 by
grabbing him around the neck in a "choke hold," slamming him on his
bunk, and punching him in the face and head. 3
As a result of this
incident George reportedly suffers from "neck aches" and "dizzy
Claims lodged by George initially against Sergeant C.
Gaylord, Medical Supervisor P. Pace, and Officer L. Uche were
severed and transferred to another district (Docket Entry No. 11).
Claims against Physician's Assistant Brenda Armstrong were
dismissed under Rule 12(b) (1) and 12(b) (6) of the Federal Rules of
Civil Procedure (Docket Entry No. 44).
The pleadings do not clearly establish when the alleged use
of force occurred.
See Amended Complaint, Docket Entry No. 10,
B. Armstrong, Docket Entry No. 37, p. 1 (estimating that George was
denied medical care after the assault in or around July or August
of 2015) . A grievance submitted by George following the incident
indicates that it happened, if at all, in May of 2015. See Step 1
Grievance #2015149188, Exhibit A to Defendants' MSJ, Docket Entry
No. 52-1, pp. 9-10.
Plaintiff's More Definite Statement,
Id. at 4.
Docket Entry No.
George contends that Sergeant Stewart used excessive force
against him in June of 2015 by slamming his hand in the food tray
cell door. 5
reportedly sustained an injury to his left wrist and the index and
middle fingers of his left hand. 6
constitutional rights under the Eighth Amendment. 7
Stewart move for summary judgment on the grounds that George did
not exhaust available administrative remedies before filing suit as
required by the Prison Litigation Reform Act, 42 U.S.C.
Standard of Review
motion for summary judgment is governed by
Rule 56 of the Federal Rules of Civil Procedure.
Under this rule
a reviewing 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); see also Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2552
A fact is "material" if its resolution in favor of one
party might affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2510 (1986).
Id. at 2.
Id. at 4-5.
issue is "genuine" if the evidence is sufficient for a reasonable
jury to return a verdict for the nonmoving party.
In deciding a summary judgment motion,
the reviewing court
must "construe all facts and inferences in the light most favorable
to the nonmoving party."
Dillon v. Rogers, 596 F.3d 260, 266 (5th
the non-movant cannot avoid summary judgment simply by
presenting "' [c]onclusional allegations and denials, speculation,
improbable inferences, unsubstantiated assertions, and legalistic
Jones v. Lowndes County, Mississippi,
344, 348 (5th Cir. 2012)
(quoting TIG Ins. Co. v. Sedgwick James of
Washington, 276 F.3d 754, 759 (5th Cir. 2002)); see also Little v.
Liguid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
non-movant cannot demonstrate a genuine issue of material fact with
scintilla of evidence) .
If the movant demonstrates the absence of
non-movant to provide
"'specific facts showing that there is a
genuine issue for trial.'"
Matsushita Elec. Indus. Co. v. Zenith
Radio Corp,, 106 S. Ct. 1348, 1356 (1986).
The plaintiff proceeds pro se in this case.
pleadings filed by pro se litigants under a less stringent standard
than those drafted by lawyers.
See Haines v.
see also Erickson v.
92 S. Ct.
construed [.] '") (quotation omitted) .
Nevertheless, "pro se parties
must still brief the issues and reasonably comply with
procedural rules] "
Grant v. Cuellar, 59 F.3 523, 524
The Fifth Circuit has held that "[t]he notice afforded by
the Rules of Civil Procedure and the local rules" is "sufficient"
to advise a
pro se party of his burden in opposing a
See Martin v. Harrison County Jail, 975 F.2d 192,
193 (5th Cir. 1992).
Exhaustion of Administrative Remedies
This case is governed by the Prison Litigation Reform Act
(the "PLRA"), which requires prisoners to exhaust administrative
1997e (a) .
The Supreme Court has
repeatedly emphasized that
mandates exhaustion of all administrative procedures
before an inmate can file any suit challenging prison conditions.
See Booth v.
122 S. Ct.
(2002); Woodford v. Ngo,
see also Jones v.
126 S. Ct.
exhaustion is mandatory under the PLRA and that unexhausted claims
cannot be brought in court").
TDCJ has a formal two-step administrative grievance process.
See Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004); see also
Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998)
administrative grievance at the institutional level followed by a
Step 2 appeal if the result is unfavorable) .
A Step 1 grievance,
which is reviewed by officials at the inmate's assigned facility,
385 F.3d at 515.
Once an inmate
receives a response to his Step 1 grievance, he then has ten days
to file a Step 2 grievance to appeal an unfavorable result at the
Substantial compliance with this process is
not enough to exhaust remedies under the PLRA.
596 F.3d 260, 268 (5th Cir. 2010)
Dillon v. Rogers,
("Under our strict approach, we
have found that mere 'substantial compliance' with administrative
remedy procedures does not satisfy exhaustion.") .
A Texas prisoner
Wright v. Hollingsworth, 260 F.3d 357, 358
F. 3d at
(5th Cir. 2001)).
administrative grievances for the period of time relevant to his
claims in this case. 8
On May 27,
George filed a
Grievance to challenge a disciplinary conviction that he received
Business Records Affidavit of Manager of Offender Grievance
Kelli Ward, Exhibit A to Defendants' MSJ, Docket Entry No. 52-1,
Step 1 Grievance #2015149188, Exhibit A to Defendants' MSJ,
Docket Entry No. 52-1, pp. 9-10.
primarily challenged the result of the disciplinary proceeding,
George alleged that Snearly placed George in a
choke hold and
dragged him to the medical department while George was in a semiconscious state. 10 After finding that there was sufficient evidence
to support the hearing officer's decision,
an assistant warden
unnecessary force was used. 11
On June 26,
George filed a Step 1 Grievance alleging
that Sergeant Stewart slammed his left hand repeatedly in the food
tray slot of his cell. 12
This grievance was returned to George
unprocessed because he did not comply with prison procedures. 13
On July 29, 2015, and August 5, 2015, George filed additional
Step 1 Grievances that contain vague references to his claims that
Defendants Snearly and Stewart used excessive force against him. 14
However, these grievances were also returned to George unprocessed
Step 1 Grievance #2015168676, Exhibit A to Defendants' MSJ,
Docket Entry No. 52-1, pp. 7-8.
Step 1 Grievances #2015185830 and #2015190344, Exhibit A to
Defendants' MSJ, Docket Entry No. 52-1, pp. 5-6 and 3-4.
Id. at 6,
There is no evidence in the administrative record showing that
George filed a Step 2 Grievance in connection with any of the
claims that he raises in this case.
The Fifth Circuit has made
clear that a prisoner does not exhaust available administrative
remedies as required by the PLRA where he has only completed one
step of a two-step grievance process.
See Wright, 260 F.3d at 358
(concluding that a prisoner's lawsuit was precluded by the PLRA
where he "did not pursue the grievance remedy to conclusion").
attached to his
sufficient to exhaust administrative remedies in this case. 16
affidavit from Misti Sorenson, who serves as a Program Supervisor
for the TDCJ Administrative Review and Risk Management Division. 17
Sorenson notes that the Step 2 Grievance proffered by George is not
submitted or processed. 18
Thus, it is not sufficient to satisfy the exhaustion requirement.
See Johnson, 385 F.3d at 518 (noting that a grievance which fails
Step 2 Grievance, attached to Prisoner's Civil Rights
Complaint ("Original Complaint"), Docket Entry No. 1-1, pp. 10-11;
Plaintiff's Response to MSJ, Docket Entry No. 54, pp. 1-2.
Affidavit of Misti Sorenson, Exhibit B to Defendants' MSJ,
Docket Entry No. 52-2, pp. 2-3.
to provide facts giving notice of a problem is insufficient to
Enforced, By Court to Comply With a Full Disclosure (Docket Entry
No. 53), George seeks discovery of disciplinary,
and grievance records from the entire length of his incarceration.
To the extent that this demand could be construed as a motion for
a continuance to conduct discovery under Rule 56(d) of the Federal
Rules of Civil Procedure, the request will be denied because George
fails to provide any facts
showing how the requested discovery
defendants' properly supported motion for summary judgment.
Stearns Airport Equipment Co.,
170 F.3d 518,
534-35 (5th Cir. 1999) (interpreting former Fed. R. Civ. P. 56(f)).
Based on the uncontradicted summary-judgment record, George
did not complete both steps of the two-step TDCJ grievance process
clarified, prisoners may not deliberately bypass the administrative
process by flouting or failing to comply with an institution's
procedural rules where the exhaustion of remedies is concerned.
See Woodford, 126 S. Ct. at 2389.
Because George failed to exhaust
the defendants are entitled to summary judgment and
this case must be dismissed.
See Wright, 260 F.3d at 359.
Conclusion and Order
Based on the foregoing, the court ORDERS as follows:
Defendants Snearly and Stewart's Motion for Summary
Judgment for Failure to Exhaust Administrative
Remedies (Docket Entry No. 52) is GRANTED.
Plaintiff's Demand that Defendants are Ordered, and
Enforced, By Court to Comply With a Full Disclosure
(Docket Entry No. 53) is DENIED.
This action will be dismissed with prejudice.
The Clerk is directed to provide a copy of this Memorandum
Opinion and Order to the parties.
SIGNED at Houston, Texas, on this 2nd day of February, 2017.
UNITED STATES DISTRICT JUDGE
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