Ornelas v. Hamilton ( 2021 )

Case: 19-50681 Document: 00516044313 Page: 1 Date Filed: 10/06/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 6, 2021
No. 19-50681
Lyle W. Cayce
Clerk
Juan Javier Ornelas,
Plaintiff—Appellant,
versus
Alexander Hamilton, Office of Inspector General,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:18-CV-56
Before Owen, Chief Judge, and Clement and Duncan, Circuit Judges.
Per Curiam:*
Juan Javier Ornelas, Texas prisoner # 01758617, filed a pro se civil
rights complaint under 42 U.S.C. § 1983 against Alexander Hamilton, an
investigator for the Texas Department of Criminal Justice’s (“TDCJ”)
Office of the Inspector General. Ornelas alleged that another inmate
physically and sexually abused him while confined at the Boyd Unit within
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-50681 Document: 00516044313 Page: 2 Date Filed: 10/06/2021
No. 19-50681
the TDCJ. Despite allegedly reporting the abuse to Hamilton, Ornelas claims
that Hamilton ignored his written complaints. As a result, the physical and
sexual abuse purportedly continued. Hamilton moved for summary
judgment, claiming that, among other things, Ornelas failed to exhaust his
administrative remedies pursuant to the Prison Litigation Reform Act
(“PLRA”).
The district court granted Hamilton’s motion for summary judgment
and dismissed Ornelas’ § 1983 claim with prejudice, finding that Ornelas’
claims were unexhausted, and, in any event, he had not alleged sufficient
facts to state a claim for failure to protect. Ornelas timely appealed, asserting
that the district court erred in: (1) finding that his claims were not exhausted;
(2) finding that he did not allege sufficient facts to support his failure to
protect claim; and (3) denying his motions to compel discovery and for the
appointment of counsel. Ornelas also moved for the appointment of counsel
on appeal, which we granted. We now affirm.
I.
We review a grant of summary judgment de novo. Nickell v. Beau View
of Biloxi, L.L.C., 636 F.3d 752, 754 (5th Cir. 2011) (quotation omitted).
Summary judgment is proper where there is no genuine dispute regarding
any material fact, and the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a).
II.
A prisoner who wishes to file a § 1983 lawsuit for damages against
prison officials must first exhaust all available administrative remedies. 42
U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 202 (2007); Johnson v.
Johnson, 385 F.3d 503, 515 (5th Cir. 2004). To properly exhaust a claim, a
prisoner must not only pursue all available avenues of relief but must also
comply with all administrative remedies and procedural rules. Woodford v.
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Ngo, 548 U.S. 81, 89–95 (2006). If a claim is not properly exhausted prior to
the filing of the § 1983 complaint, it must be dismissed. Gonzalez v. Seal, 702
F.3d 785, 788 (5th Cir. 2012) (per curiam).
Hamilton concedes that “under current Fifth Circuit case law, any
administrative-exhaustion argument was waived when prison officials
considered, and rejected, Ornelas’[] grievance on the merits.” See Appellee
Supp. Br. at 11–12 (first citing ROA.236-37, 257-58; then citing Gates v. Cook,
376 F.3d 323, 331 n.6 (5th Cir. 2004); Johnson, 385 F.3d at 520; Cortez v.
Richardson, 725 F. App’x 315, 315–16 (5th Cir. 2018) (per curiam); Patterson
v. Stanley, 547 F. App’x 510, 512 (5th Cir. 2013) (per curiam)).
Notwithstanding Hamilton’s exhaustion concession, Ornelas still cannot
prevail on appeal because he failed to allege sufficient facts to state a claim
for failure to protect.
III.
To state of claim of failure to protect, a prisoner must show that “he
was incarcerated under conditions posing a substantial risk of serious harm
and that prison officials were deliberately indifferent to his need for
protection.” Jones v. Greninger, 188 F. 3d 322, 326 (5th Cir. 1999) (per
curiam) (internal quotation marks and citation omitted).
As the district court determined, there was no evidence or allegation
that Hamilton was aware of facts from which he could infer that there was an
excessive risk to Ornelas’ safety. See Whitley v. Hanna, 726 F.3d 631, 641
(5th Cir. 2013) (“To act with deliberate indifference, a state actor must know
of and disregard an excessive risk to the victim’s health or safety.” (cleaned
up)). Though Ornelas alleges that he sent letters to Hamilton on April 1 and
April 17, 2016, reporting the abuse, and asking for help, there is no evidence
or allegation that Hamilton saw them. There is also no evidence or allegation
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that Hamilton ever saw or received the grievances Ornelas eventually filed in
2017, after being transferred from the Boyd Unit.
To the extent that Ornelas argues that Hamilton should have
perceived the risk to his health and safety given that Hamilton knew that
Ornelas previously acted as an informant in an official prison investigation,
that is insufficient to support a constitutional claim under the Eighth
Amendment. “[A]n official’s failure to alleviate a significant risk that he
should have perceived but did not,” does not constitute deliberate
indifference. Farmer v. Brennan, 511 U.S. 825, 838 (1994); see id. at 840(holding that “Eighth Amendment liability requires consciousness of a
risk”); cf. Johnson, 385 F.3d at 524 (“The official’s knowledge of the risk can
be proven through circumstantial evidence, such as by showing that the risk
was so obvious that the official must have known about it.” (citation
omitted)).
IV.
Ornelas argues that the district court erred in dismissing his pending
motion to compel discovery when it granted summary judgment. Ornelas
does not explain how any discovery would have substantiated his allegations
regarding his claim of failure to protect. Because Ornelas relies on vague
assertions regarding the need for additional discovery, he has failed to show
that the district court abused its discretion in denying his motion to compel.
See Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1267 (5th Cir. 1991).
Ornelas further complains that the district court erred in denying his
motion for the appointment of counsel. Ornelas’ claim of failure to protect
is not so complex as to require the appointment of counsel. See Ulmer v.
Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). Moreover, Ornelas’ filings in
the district court indicate his grasp of the facts and relevant substantive and
procedural legal issues and demonstrate that he can adequately investigate
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and present his case. See Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir.
2007). The district court did not abuse its discretion in refusing to appoint
counsel for Ornelas. See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).
AFFIRMED.
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