concluding that a generalized fear of retaliation does not amount to an excuse in light of the Fifth Circuit’s “strict approach to the exhaustion requirement”
How later courts described this case
- concluding that a generalized fear of retaliation does not amount to an excuse in light of the Fifth Circuit’s “strict approach to the exhaustion requirement”
Written by the judges who cited it.
The opinion
Case: 10-50301 Document: 00511586079 Page: 1 Date Filed: 08/29/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 29, 2011
No. 10-50301
Summary Calendar Lyle W. Cayce
Clerk
LARRY W BROWN,
Plaintiff-Appellant
v.
CIVIGENICS, a Public Corporation; CORPORAL MORENO; CORRECTIONAL
OFFICER BARRERA; CORPORAL HENRY,
Defendants-Appellees
Appeals from the United States District Court
for the Western District of Texas
USDC No. 7:09-CV-23
Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Larry W. Brown, federal prisoner # 79315-180, appeals pro se from the
district court’s grant of summary judgment to the appellees and dismissal of his
complaint for failure to state a claim and failure to exhaust. He argues that the
district court erred in granting the summary judgment motion after concluding
that he had failed to state a claim under Bivens v. Six Unnamed Agents of the
Fed. Bureau of Narcotics, 403 U.S. 388 (1971), that he had not exhausted his
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 10-50301 Document: 00511586079 Page: 2 Date Filed: 08/29/2011
No. 10-50301
administrative remedies, and that he had not provided sufficient facts to support
his Texas common law negligence claims. He further asserts that the district
court erred in dismissing his complaint pursuant to 28 U.S.C. §§ 1915 and
1915A.
We review the district court’s grant of summary judgment de novo.
Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011). Dismissal is
appropriate where a prisoner files a civil rights complaint without first
exhausting his administrative remedies. See Marsh v. Jones, 53 F.3d 707, 710
(5th Cir. 1995). “[P]roper exhaustion of administrative remedies is necessary.”
Woodford v. Ngo, 548 U.S. 81, 84 (2006). A prisoner cannot satisfy the
exhaustion requirement by filing an untimely grievance or appeal. Id. at 83-84.
The record reveals that Brown did not initiate the grievance procedure
until February 10, 2008, although the alleged incident of which he complains
happened in late July or early August of 2007. According to the detention
facility’s Inmate Handbook, inmates have five days after an incident to make an
informal complaint to staff, five days after that to file a formal, written
complaint, and five days in which to appeal the results. Because Brown filed his
grievance seven months late, he did not properly exhaust his administrative
remedies. Id.
Brown’s assertions that he did not have the mental capacity to file a timely
grievance and feared retaliation for filing a grievance are without merit. The
Fifth Circuit has generally taken a strict approach to the exhaustion
requirement. See, e.g., Ferrington v. La. Dep’t of Corr., 315 F.3d 529, 532 (5th
Cir. 2002) (concluding that plaintiff’s blindness did not prevent him from filing
a timely grievance given that he filed a civil rights complaint, appealed the
results of a disciplinary hearing, and filed unrelated grievances). Richardson v.
Spurlock, 260 F.3d 495, 499 (5th Cir. 2001) (affirming dismissal of prisoner’s 42
U.S.C. § 1983 claim for failure to exhaust where prisoner incorrectly filed an
administrative appeal instead of a disciplinary appeal). Moreover, Brown was
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Case: 10-50301 Document: 00511586079 Page: 3 Date Filed: 08/29/2011
No. 10-50301
timely informed that his grievance was too late, and nothing in the record
indicates that the defendants intended to waive the affirmative defense of failure
to exhaust.
In addition, Brown’s assertion that the district court should have granted
additional time for discovery before deciding the exhaustion issue is without
merit. Brown did not request a Federal Rules of Civil Procedure 56(f)
continuance for further discovery in the district court and did not provide the
district court with specific facts demonstrating how additional time for discovery
would have allowed him to present a genuine issue of material fact regarding the
issue of exhaustion. Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th
Cir. 1990).
Because Brown has not demonstrated that he exhausted his
administrative remedies, we need not consider his remaining claims.
Accordingly, the judgment of the district court is AFFIRMED.
3