# Herod v. King

> District Court, N.D. Texas · August 8, 2025

URL: https://www.frixlaw.com/law-library/cases/11117328

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** August 8, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11117328

## How later opinions describe it (automated extraction)

- explaining that the PLRA “plainly requires that administrative remedies be exhausted before the filing of a § 1983 suit, rather than while the action is pending”
- explaining that “[t]he mandatory ‘shall’... normally creates an obligation impervious to judicial discretion”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
RICHARD ANTHONY HEROD,
Plaintiff,
v. 2:22-CV-086-Z-BR
JULIA KING,
Defendant.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant’s Motion for Summary Judgment Limited to
Exhaustion of Administrative Remedies (“Motion”), filed July 24, 2025. ECF No. 83. Plaintiff
responded on August 1, 2025. ECF No. 85. Defendant replied on August 6, 2025. ECF No. 88.
Having reviewed the Motion, briefing, and relevant law, the Motion is GRANTED.
BACKGROUND
Plaintiff Richard Herod is an inmate in the Texas Department of Criminal Justice
(the “TDCJ”). Plaintiff contends that Defendant Julia King used excessive force against him
on February 23, 2022, when she allegedly kicked him in the leg when attempting to kick a
water cooler out from underneath him. See ECF No. 3. As required by Texas Department of
Criminal Justice (“TDCJ”) procedure, Plaintiff filed his Step-One grievance on February 25,
2022, after which he was advised that “no further action was warranted” on April 1, 2022.
ECF No. 80 at 3. Plaintiff then filed a Step-Two grievance on April 5, 2022. Id. However, prior
to receiving a response regarding his Step-Two grievance, Plaintiff initiated suit. ECF No. 3
(Original Complaint filed on April 21, 2022). Plaintiff's Step-Two grievance response was
returned on May 6, 2022.

On July 21, 2025—after litigation had been ongoing for three years, three months,
and one day—the Court received joint correspondence from parties regarding discovery of
two potential issues that would either dispose of the instant case or necessitate a
continuance. Using the Court’s Chambers Help Desk Submission Form, Attorney Polak,
counsel for Defendant, stated: “Both parties request a conference call with Judge as soon as
possible. While prepping for trial on 8/5/25, we have discovered two potential issues that will
either dispose of the case entirely or potentially necessitate a continuance. The first, which
may be dispositive, is an exhaustion issue. The second, which is a major dispute over a piece
of evidence, would require a continuance if the Court rules in Plaintiffs favor. We appreciate
that we are close to trial but are attempting to avoid ‘blowing’ a jury panel and wanted to
bring these issues to the court’s attention as soon as possible.” In response, the Court ordered
parties to file a joint brief on the issues necessitating potential disposition or continuance of
the case. ECF No. 76.
The parties did so. ECF No. 80. In addition, Defendant filed a motion seeking leave to
file a motion for summary judgment limited to the dispositive issue of exhaustion of
administrative remedies. ECF No. 81, The Court granted Defendant's motion (ECF No. 82),
and Defendant filed the instant Motion on July 24, 2025. ECF No. 83.
LEGAL STANDARD
A 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). A fact is “material” if its existence or nonexistence “might affect the
outcome of the suit under the governing law,” and the dispute about a material fact is
“genuine” if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

ANALYSIS
Here, the Court must analyze exhaustion of administrative remedies under the Prison
Litigation Reform Act (“PLRA”). When civil-rights prisoner grievances arise, prisoners are
not permitted to run straight to federal court—rather, the PLRA requires prisoners to seek
initial relief from state prison officials prior to filing a federal suit under 41 U.S.C. Section
1983. See 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 532 (2002) (“[W]e hold that the
PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and whether they allege excessive force
or some other wrong.’). In short, prisoners must “exhaust” their administrative remedies
before suing. Exhaustion under Texas Department of Criminal Justice (“TDCJ”) procedure
requires that prisoners complete a two-step grievance process. First, a prisoner must file a
Step-One grievance within fifteen days of the alleged incident. Rosa v. Littles, 336 F. App’x
424, 428 (5th Cir. 2009). The prisoner may then appeal an adverse Step-One decision by filing
a Step-Two grievance. Jd. Only after both steps of this grievance process have been fully
completed—meaning both Steps filed and decisions rendered—can the administrative
remedies process be considered exhausted.
The Fifth Circuit takes a “strict approach” to the exhaustion requirement. See, e.g.,
Dillon v. Rogers, 596 F.3d 260, 268 (5th Cir. 2010) (“Under our strict approach, we have found
that mere “substantial compliance” with administrative remedy procedures does not satisfy
exhaustion; instead, we have required prisoners to exhaust available remedies properly.”).
To be sure, “there are no ‘futility or other [judicially created] exceptions [to the] statutory
exhaustion requirements.” Valentine v. Collier, 956 F.3d 797, 804 (5th Cir. 2020) (quoting
Booth v. Churner, 532 U.S. 731, 741 n.6 (2001)). This edict “contains one significant qualifier:
the remedies must indeed be ‘available’ to the prisoner.” Ross v. Blake, 578 U.S. 632, 639

(2016). In short, an inmate “must exhaust available remedies, but need not exhaust
unavailable ones.” Jd. at 642, 642-44 (discussing three circumstances of unavailability:
where administrative procedure “operates as a dead end,” is “incapable of use” for inability
to navigate, or when prison administrators “thwart inmates .. . through machination,
misrepresentation, or intimidation”). Outside of this single exception, the language of Section
1997e(a) is mandatory.
Further, PLRA exhaustion is “not jurisdictional” and is an “affirmative defense
subject to the usual practice under the Federal Rules.” Perttu v. Richards, 145 S. Ct. 1793,
1801 (2025) (internal marks omitted). Thus, the defendant has the burden of demonstrating
that the plaintiff failed to exhaust his administrative remedies prior to filing suit. See Jones
v. Bock, 549 U.S. 199, 216 (2007). Such demonstration must be timely, as an affirmative
defense generally must be asserted “[i]n responding to a pleading,” FED. R. CIv. P. 8(c)(1), or
“in the responsive pleading,” FED. R. Civ. P. 12(b). A defendant’s failure to assert the
affirmative defense of exhaustion at the proper time can result in waiver of the defense. Giles
v. Gen. Elec. Co., 245 F.3d 474, 491 (5th Cir. 2001). However, if a defendant raises an
affirmative defense “at a pragmatically sufficient time, and [the plaintiff] was not prejudiced
in its ability to respond,” or “[w]here the matter is raised in the trial court in a manner that
does not result in unfair surprise,” the technical failure to comply with Rule 8(c) is not fatal
and the defense is not waived. Id. at 492; Allied Chem. Corp. v. Mackay, 695 F.2d 854, 855—
56 (5th Cir. 1983).
I. Exhaustion of Remedies
Defendant argues that Plaintiff has failed to fully exhaust his administrative
remedies, as Plaintiff initiated suit prior to receiving a response regarding his Step-Two
grievance. ECF No. 3 (Original Complaint filed on April 21, 2022). This timeline supports

Defendant's contention that Plaintiff “did not pursue his available administrative remedies
to conclusion before filing suit,” which “mandates dismissal.” ECF No. 80 at 4. Accordingly,
Defendant filed a Motion for Summary Judgment limited to the issue of exhaustion of
administrative remedies. ECF No. 83.
Naturally, Plaintiff opposes dismissal. Plaintiff admits on the face of his Original
Complaint that he had not yet exhausted administrative remedies prior to filing suit.
ECF No. 3 at 3. However, Plaintiff filed early to seek “injunctive relief so that [video evidence
of the incident] could be preserved,” as he was concerned that such footage could “be lost or
damaged [or] erased.” ECF No. 80 at 6. Plaintiff also requested to “[a]mend his complaint
after state remedies are exhausted.” Jd. For this reason, Plaintiff argues that his complaint
“should not be dismissed on exhaustion grounds because exhaustion should not be used as a
tool to allow the destruction of material evidence.” /d. at 7. Further, Plaintiff asserts that
“Defendant has failed to timely raise exhaustion in compliance with the Court’s scheduling
order’ and has thus “waived the right to assert this defense.” Jd. at 8—9.
The Court agrees with Defendant for three reasons. Each will be discussed in turn.
A. The statutory text of the PLRA mandates exhaustion.
The first basis for the Court’s agreement with Defendant arises from the plain text of
the PLRA. As discussed above, Section 1997e(a) provides that “[n]o action shall be brought
with respect to prison conditions under section 1983 of this title, or any other Federal law, by
a prisoner confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). And, as the Supreme Court
“ha[s] often observed, that language is ‘mandatory.” Ross, 578 U.S. at 639 (quoting Woodford
v. Ngo, 548 U.S. 81, 85 (2006)). Such mandatory language forecloses a court’s ability to excuse
any failure to exhaust, irrespective of special circumstances. See, e.g., Miller v. French, 530

U.S. 327, 337 (2000) (explaining that “[t]he mandatory ‘shall’... normally creates an
obligation impervious to judicial discretion”). The Supreme Court’s directives are clear: “[A]
statutory exhaustion provision stands on a different footing. There, Congress sets the rules—
and courts have a role in creating exceptions only if Congress wants them to. For that reason,
mandatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes,
foreclosing judicial discretion.
This Court is deprived of an exercise of judicial discretion. The Court may not fabricate
exceptions where the statutory text and its mandates provide none; here, Congress has
strictly barred prisoners from filing suit in federal court until they have exhausted their
administrative remedies. Ross, 578 U.S. at 639; McNeil v. United States, 508 U.S. 106, 111,
113 (1993). Despite Plaintiffs request for an injunction to prevent potential destruction of
evidence, “requests for injunctive relief are not exempt from the exhaustion requirement.”
Remsburg v. Weitman, No. 5:21-CV-001, 2022 WL 22391552, at *3 (N.D. Tex. Apr. 8, 2022)
(quoting Muhammad v. Wiles, 841 F. App’x 681, 685-86 (5th Cir. 2021)). Section 1997e(a)
makes no distinctions based on the particular form of relief sought—an uncompromising
statutory text calls us to respect Congress’s choice and avoid “engraft[ing] an unwritten
‘special circumstances’ exception onto the PLRA’s exhaustion requirement.” Ross, 578 U.S.
at 648. Plaintiff has not argued that administrative remedies are unavailable to him—
Plaintiff does not contend that TDCJ procedures “operate as a dead end,” are “incapable of
use” by nature of being unworkably opaque, or that prison administrators thwart use of the
system.! See Valentine v. Collier, 956 F.3d 797, 804 (5th Cir. 2020).

' Plaintiff stated his belief that the grievance process was not “taken seriously.” ECF No. 86 at 15.
However, “there is no ‘futility’ exception to the PLRA,” and “claims that the available procedures are
inadequate .. . are insufficient to excuse the exhaustion requirement.” Ford v. Register, No.
3:10-CV-390, 2010 WL 5678669, at *4 (N.D. Tex. Dec. 23, 2010); Greer v. Fowler, No. 4:19-CV-1017,

That Plaintiff filed an Amended Complaint after fully exhausting administrative
remedies makes no difference. Plaintiff argues that “at the time [his] Amended Complaint
(ECF 30) [was] filed, [he] had exhausted the grievance process.” ECF No. 86 at 13. This
amended pleading, Plaintiff asserts, cures any pleading defects regarding administrative
exhaustion present in Plaintiffs original complaint. Jd. at 13-14. This is not so.
Though the “general rule” is that an “amended complaint supersedes the original” and
cures any “original defect[s],” the general rule finds no force here. Ramirez v. Collier, 595
U.S. 411, 422-23 (2022) (dictum). The Fifth Circuit clearly states that, in the PLRA context,
amended complaint will not typically cure the failure to exhaust administrative
remedies prior to initially filing suit.” Smith v. Olsen, 455 F. App’x 513, 515-16 (5th Cir.
2011); Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998) (explaining that the PLRA “plainly
requires that administrative remedies be exhausted before the filing of a § 1983 suit, rather
than while the action is pending”), overruled by implication on other grounds by Jones v.
Bock, 549 U.S. 199 (2007). This result embraces logic—providing prisoners an end-run
around administrative exhaustion by means of an amended complaint would encourage
premature filing and undermine PLRA’s purpose of providing federal courts some relief from
frivolous prisoner litigation.
Plaintiff failed to exhaust his administrative remedies prior to filing suit in federal
court. Accordingly, the Court must dismiss.
B. Defendant has not waived her affirmative defense.
Second, Defendant has not waived her affirmative defense. Defendant raised her
affirmative defense in the Original Answer to Plaintiffs Original Complaint. ECF No. 24 at 4.

2022 WL 394762, at *5 (N.D. Tex. Feb. 8, 2022) (noting that “courts may not read a ‘futility’ exception
into the exhaustion requirement.”).

Defendant did not, however, discuss this defense in any responsive pleading or dispositive
motion following entry of Plaintiff's Amended Complaint on February 1, 2024.
Despite this, Plaintiff was on notice of Defendant’s affirmative defense from the
beginning of the lawsuit—Plaintiff could not be unfairly surprised, as Defendant asserted in
her original answer that “some or all of Plaintiff's claims are barred by failing to properly
exhaust the TDCJ Prisoner Administrative Grievance System.” ECF No. 24 at 4; see also KST
Data, Inc. v. DXC Tech. Co., 980 F.3d 709, 715-16 (9th Cir. 2020) (finding that defendant
“did not waive its affirmative defenses ... by not filing an answer to the Second Amended
Complaint”). Further, Plaintiff has not been prejudiced in his ability to respond. In fact,
Plaintiff was explicitly provided an opportunity to file a response brief to the instant Motion,
tailored to the issue of administrative-remedy exhaustion. ECF No. 86. And Plaintiff did so.
Thus, any failures by Defendant to comply with Rule 8(c) are not fatal and the affirmative
defense has not been waived. See, e.g., Allied Chem. Corp., 695 F.2d at 855-56.
C. The merits of the case are not intertwined with the issue of PLRA
exhaustion.
Third, the issue of PLRA exhaustion is not intertwined with the merits of Plaintiffs
claim. Plaintiff asserts the “attempt to avoid the destruction of essential evidence prior to
exhaustion was intertwined with the merits of his excessive force claim,” thus implicating his
Seventh Amendment rights. ECF No. 80 at 8. The Court disagrees.
The Supreme Court recently held in Perttu v. Richards that “parties are entitled toa
jury trial on PLRA exhaustion when that issue is intertwined with the merits of a claim
protected by the Seventh Amendment.” 145 S. Ct. at 1807. But the factual background found
in Perttu differs significantly than the case currently before the Court. In Perttu, the relevant
complaint “alleged that the plaintiffs had ‘attempted to exhaust remedies to the best of [their]
ability but had been ‘threatened and retaliated against’ for doing so.” Jd. at 1799.

Specifically, “the complaint listed specific incidents in which Perttu allegedly ripped up the
plaintiffs’ grievance forms, threw them away, and threatened to kill the plaintiffs if they filed
more.” Jd. Thus, a factual dispute existed as to whether plaintiffs exhausted the
administrative remedies available to him—more precisely, whether the alleged destruction
of physical grievances rendered the prison grievance system unavailable for purposes of the
PLRA. This, the Supreme Court held, is a question for the jury.
Not so here. There is no question of whether the prison grievance system was properly
available to Plaintiff. Although Plaintiff preemptively filed suit to avoid potential destruction
of evidence he deemed essential, such evidentiary concerns never rendered the actual
administrative exhaustion process unavailable as in Perttu. In fact, Plaintiff filed and
eventually received responses on both his Step-One and Step-Two grievances. The issue of
PLRA exhaustion is not intertwined with the merits of Plaintiffs claim.
II. Dismissal Without Prejudice and Equitable Tolling
Where Plaintiff has failed to properly exhaust administrative remedies prior to filing
suit, dismissal without prejudice to refiling is the typical course of action. See, e.g., Perttu,
145 S. Ct. at 1793. However, as Plaintiff correctly notes, dismissal without prejudice fails to
functionally operate as such if Plaintiffs statute of limitations has run. ECF No. 86 at 16.
Thus, the Court considers whether the statute of limitations has run on Plaintiffs claim, and
if so, whether equitable tolling applies.
Section 1983 does not contain a statute of limitations; thus, the applicable state
statute of limitations and related tolling provisions must be used. See Heard v. Strange, 127
F.4th 630, 633 (6th Cir. 2025). Texas has a two-year statute of limitations for personal injury
claims. See TEX. CIV. PRAC. & REM. CODE § 16.003(a); Burrell v. Newsome, 883 F.2d 416, 418
(5th Cir. 1989). As “the incident forming the basis of the lawsuit occurred on February 23,

2022,” Plaintiff's limitations period ran on February 23, 2024. ECF No. 86 at 17. In order for
Plaintiff to be able to refile a case following exhaustion of administrative remedies, equitable
tolling must apply. The Fifth Circuit has routinely indicated that the relevant statute of
limitations period can be equitably tolled during the pendency of a plaintiff's Section 1983
action. See, e.g., Clifford v. Gibbs, 298 F.3d 328, 333 (5th Cir. 2002) (“[W]e grant [Plaintiffs]
request to equitably toll limitations on his § 1983 action during the pendency of this
action... .”); Wright v. Hollingsworth, 260 F.3d 357, 359 (5th Cir. 2001) (“[Plaintiff requests]
dismissal without prejudice and equitable tolling of the Texas statute of limitations during
the pendency of this action and any additional state administrative proceedings. These
modifications of the judgment are appropriate.”).
Just so here. It would certainly be unfair to “twice deny [Plaintiff] a federal forum for
section 1983 complaints, once for being too early and again for being too late.” Rodriguez v.
Holmes, 963 F.2d 799, 805 (5th Cir. 1992) (internal citation omitted). Accordingly, Plaintiffs
limitations will be considered tolled during the pendency of the instant action.
CONCLUSION
For the foregoing reasons, Defendant’s Motion is GRANTED. Plaintiffs claim is
DISMISSED without prejudice.
SO ORDERED.
August g 2025 Win desea
MATTHEW J. KACSMARYK
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11117328. Public record. Not legal advice.