Earl Million v. Dawn Grounds

Case: 15-41444 Document: 00514011973 Page: 1 Date Filed: 05/30/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

No. 15-41444

Fifth Circuit

FILED

Summary Calendar May 30, 2017

Lyle W. Cayce

EARL RAYMOND MILLION, Clerk

Plaintiff-Appellant

v.

DAWN E. GROUNDS; FNU NEAL; FNU CHOAT; D. MOOR, Lieutenant;

MAINTENANCE SUPERVISOR; DIANE MOORE; ALVIE W. KING,

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 5:14-CV-11

Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.

PER CURIAM: *

Earl Raymond Million, Texas prisoner # 1170997, appeals the district

court’s judgment granting summary judgment and dismissing his 42 U.S.C.

§ 1983 complaint. With regard to his claim that the appellees were deliberately

indifferent to his safety, he asserts that the appellees’ failure to inspect and

maintain the overhead exhaust system in a shower at the Telford Unit resulted

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

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No. 15-41444

in his sustaining serious injuries when the system fell on him. According to

Million, the appellees are not entitled to immunity under the Eleventh

Amendment or qualified immunity.

This court reviews a grant of summary judgment de novo, employing the

same standard as the district court. Carnaby v. City of Houston, 636 F.3d 183,

187 (5th Cir. 2011). Summary judgment is appropriate “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).

Million’s complaints about the appellees’ conduct while they were

performing their duties as officers employed by the state prison system fall

within the scope of the Eleventh Amendment and, thus, they are entitled to

sovereign immunity. See Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437

(2004); Mayfield v. Texas Dep’t Of Criminal Justice, 529 F.3d 599, 604 (5th Cir.

2008). To the extent that Million seeks monetary damages from the appellees

in their official capacities, the appellees are entitled to judgment as a matter

of law on the basis of sovereign immunity. Mayfield, 529 F.3d at 604. Insofar

as he is seeking injunctive relief, Million’s claims against the appellees in the

official capacities are moot because he has been transferred to another facility.

See Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002).

With respect to Million’s Eighth Amendment claim based on deliberate

indifference, appellees Grounds, Neal, Choate, and King raised the defense of

qualified immunity and, therefore, the burden was on Million to show that the

defense did not apply. Jones v. Lowndes Cty, Miss., 678 F.3d 344, 351 (5th Cir.

2012). Viewing the evidence in the light most favorable to Million, he has failed

to show that the appellees possessed facts raising an inference that the exhaust

system presented a substantial risk of harm or that the appellees knowingly

disregarded the risk by failing to inspect and maintain the system. See Farmer

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No. 15-41444

v. Brennan, 511 U.S. 825, 837 (1994). His conclusional and unsubstantiated

assertions do not demonstrate that the appellees’ conduct rose to the level of

deliberate indifference in violation of the Eighth Amendment and, thus, he has

failed to show that the appellees violated a clearly established constitutional

right. Carnaby, 636 F.3d at 187; Pearson v. Callahan, 555 U.S. 223, 232 (2009).

Their conduct, even if it departed from prison policy or rules, was at most

negligence and not deliberate indifference. See Longoria v. Texas, 473 F.3d

586, 593 n.9 (5th Cir. 2006). Because Million has failed to show that there is a

genuine dispute of material fact regarding the appellees’ entitlement to the

defense of qualified immunity, the district court did not err in granting

summary judgment in the appellees’ favor. Carnaby, 636 F.3d at 187.

Million also challenges, in a reply brief to appellee Moore’s brief, the

district court’s grant of summary judgment dismissing with prejudice his

retaliation claim against her for failure to exhaust his administrative

remedies. The issue is probably waived, because it was not raised in Million’s

opening brief. See Warren v. Chesapeake Expl., L.L.C., 759 F.3d 413, 420 (5th

Cir. 2014). Even if the issue is properly before us, Million cannot prevail.

This court reviews a district court’s dismissal of a prisoner’s § 1983

complaint for failure to exhaust de novo. Carbe v. Lappin, 492 F.3d 325, 327

(5th Cir. 2007). Proper exhaustion requires that the prisoner not only pursue

all available avenues of relief but also comply with all administrative deadlines

and procedural rules. Woodford v. Ngo, 548 U.S. 81, 89-93 (2006). The Texas

prison system has a two-step formal grievance process, and “a prisoner must

pursue a grievance through both steps for it to be considered exhausted.”

Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004). (internal quotations

and citation omitted). Million failed to properly present his retaliation claim

in either grievance step. Therefore, he failed to satisfy the exhaustion

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requirement. See Woodford, 548 U.S. at 83-84. Because Million has not raised

any genuine disputed issue of material fact relevant to the exhaustion issue,

the district court did not err in granting summary judgment dismissing the

retaliation claims with prejudice. Carnaby, 636 F.3d at 187.

Million has not shown that his case involves exceptional circumstances

that require the appointment of counsel. See Ulmer v. Chancellor, 691 F.2d

209, 212-13 (5th Cir. 1982). His motion for appointment of counsel is DENIED.

The judgment of the district court is AFFIRMED.

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