Javary Trigg v. Freddy Wiginton , 600 F. App'x 295 ( 2015 )

Case: 14-10285 Document: 00513023427 Page: 1 Date Filed: 04/28/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 14-10285 April 28, 2015
Summary Calendar
Lyle W. Cayce
Clerk
JAVARY TREYMAYNE TRIGG,
Plaintiff–Appellant,
v.
FREDDY WIGINTON, also known as Wiginton; KENNY DEAN, also known
as Dean,
Defendants–Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:10-CV-1962
Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
Javary Treymayne Trigg, federal prisoner # 33637-177, appeals the
district court’s dismissal of his Bivens action for failure to exhaust his
administrative remedies. 1 Trigg argues that the district court erred when it
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
1See 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 524 (2002) (holding that the
exhaustion requirement of 42 U.S.C. § 1997e(a) applies to Bivens suits).
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No. 14-10285
shifted the burden of proof. He also argues that he was not required to exhaust
unavailable administrative remedies.
Trigg argues that the district court improperly shifted the burden of
proof in his case when it required him to establish that the remedies were
available. Because Trigg did not raise this argument in his objections to the
magistrate judge’s report and recommendation, we review it for plain error. 2
The record reveals that after conducting an evidentiary hearing, 3 the district
court determined that the defendants established that Trigg failed to exhaust
his administrative remedies when he failed to file the BP-9 form necessary to
initiate the formal administrative review process and that Trigg failed to
establish that a BP-9 form was unavailable. 4 Trigg has therefore failed to show
that the district court committed any error, much less plain error, with respect
to the burden of proof.
Trigg next argues that because the BP-9 form was unavailable, he was
not required to exhaust his administrative remedies. Because Trigg raised this
argument in the district court, we review the district court’s legal rulings de
novo and its factual findings for clear error. 5 As the district court found, Trigg’s
own testimony defeats his claim. At the evidentiary hearing, Trigg admitted
that (1) he was familiar with the administrative remedy process, (2) he knew
he had to file the BP-9 form as part of that process, (3) he twice asked his
counselor for the BP-9 form, (4) he could have asked another counselor for the
2 Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc),
superseded by statute on other grounds, 28 U.S.C. § 636(b)(1), as recognized in Shelby v. City
of El Paso, Tex., 577 F. App’x 327, 331 (5th Cir. 2014) (per curiam).
3 See Dillon v. Rogers, 596 F.3d 260, 273 (5th Cir. 2010).
4See Jones v. Bock, 549 U.S. 199, 216 (2007); Fuller v. Rich, 11 F.3d 61, 62 (5th Cir.
1994) (per curiam) (citing Gardner v. Sch. Bd. Caddo Parish, 958 F.2d 108, 112 (5th Cir.
1992)).
5 Dillon, 596 F.3d at 273.
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BP-9 form, and (5) he asked for and received the BP-10 form. Moreover, Trigg
stated that he filed the BP-10 form because he believed he had accomplished
the purpose of the BP-9 form by making the warden aware of his grievance.
Trigg’s argument that he proceeded with the BP-10 form because his
grievance was sensitive is also contradicted by the record; Trigg never testified
that he believed his safety or well-being would be jeopardized if his request
became known at the prison. Furthermore, Trigg’s frequent attempts to tell
his side of the story to various prison officials belies such an assertion.
Finally, Trigg’s argument that the warden threatened to transfer him if
he pursued his grievance is also unavailing. Even if the warden threatened
Trigg, she did not do so until the deadline for submitting the BP-9 form had
passed. 6 Thus, Trigg cannot establish that he failed to timely file the BP-9
form because of the warden’s alleged threat.
Notwithstanding the foregoing, even if Trigg has established that the
BP-9 form was unavailable, his claim still fails for failure to exhaust. 7 A
prisoner has not exhausted his administrative remedies until his claim has
been filed and denied at all levels. 8 When his BP-10 form was denied because
it was not sensitive, Trigg was required to either submit a BP-9 form to the
6 See 28 C.F.R. § 542.14(a).
7 See Wilson v. Epps, 776 F.3d 296, 301 (5th Cir. 2015) (“Section 1997e's exhaustion
requirement is satisfied only if the prisoner ‘pursue[s] the grievance remedy to conclusion.’
This requirement does not fall by the wayside in the event that the prison fails to respond to
the prisoner's grievance at some preliminary step in the grievance process. Instead, the
prison's failure to timely respond simply entitles the prisoner to move on to the next step in
the process. Thus, it is only if the prison fails to respond at the last step of the grievance
process that the prisoner becomes entitled to sue, because then there is no next step (save
filing a lawsuit) to which the prisoner can advance.” (quoting Wright v. Hollingsworth, 260
F.3d 357, 358 (5th Cir.2001))); see also Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012)
(per curiam); Dillon v. Rogers, 596 F.3d 260, 267 & n.1 (5th Cir. 2010).
8 See 28 C.F.R. § 542.15; 42 U.S.C. § 1997(e)(a).
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warden or appeal the rejection to the next appeal level via a BP-11 form. 9
Because Trigg never filed a BP-11 form, he did not exhaust his administrative
remedies. 10
AFFIRMED.
9 28 C.F.R. §§ 542.14(d)(1), 542.15(a), 542.17(c).
10 See 28 CFR § 542.15.
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