Michael Stout v. Rick Thaler , 476 F. App'x 763 ( 2012 )


Menu:
  •      Case: 11-40740     Document: 00511822739         Page: 1     Date Filed: 04/16/2012
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    April 16, 2012
    No. 11-40740
    Summary Calendar                        Lyle W. Cayce
    Clerk
    MICHAEL STOUT,
    Plaintiff-Appellant
    v.
    ALETHEA NORTH-WILLIAMS;                       STACEY         LEBLANC;         UNKNOWN
    MCINTYRE, Security Sergeant,
    Defendants-Appellees
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 3:09-CV-67
    Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
    PER CURIAM:*
    Michael Stout, Texas prisoner # 1282657, has appealed the district court’s
    order and judgment granting the motions for summary judgment of defendants
    Alethea North-Williams and Stacey LeBlanc for failure to exhaust state
    remedies. He has also appealed the district court’s order denying his motion to
    alter or amend the judgment.
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40740   Document: 00511822739      Page: 2   Date Filed: 04/16/2012
    No. 11-40740
    Stout has moved to supplement the record on appeal, and he has attached
    documents to his brief that are not in the record. The motion is DENIED. See
    Leonard v. Dixie Well Service & Supply, Inc., 
    828 F.2d 291
    , 296 (5th Cir. 1987).
    We have not considered the documents attached to Stout’s brief.
    Stout complains of the district court’s denial of his motion for appointment
    of counsel.   Stout has not shown that exceptional circumstances required
    appointment of counsel. See Cooper v. Sheriff, Lubbock Cnty., Tex., 
    929 F.2d 1078
    , 1084 (5th Cir. 1991).
    We review de novo a district court’s summary judgment dismissal of a 
    42 U.S.C. § 1983
     complaint for failure to exhaust. Dillon v. Rogers, 
    596 F.3d 260
    ,
    266 (5th Cir. 2010). The party moving for summary judgment bears the initial
    burden of “informing the district court of the basis for its motion, and [of]
    identifying those portions of [the record] which it believes demonstrate the
    absence of a genuine” dispute as to a material fact. Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 323 (1986).
    Under the Prison Litigation Reform Act (PLRA), inmates must exhaust
    “such administrative remedies as are available” prior to bringing a civil action.
    42 U.S.C. § 1997e(a). “[F]ailure to exhaust is an affirmative defense under the
    PLRA, and . . . inmates are not required to specially plead or demonstrate
    exhaustion in their complaints.” Jones v. Bock, 
    549 U.S. 199
    , 216 (2007). “Since
    exhaustion is an affirmative defense, the burden is on the Appellees to
    demonstrate that [Stout] failed to exhaust available administrative remedies.”
    Dillon, 
    596 F.3d at 266
    .
    Stout contended in his amended complaint that he was assaulted and
    seriously injured by members of a prison gang that had put a “hit” on him. He
    also claimed that North-Williams, a prison guard, failed to protect him from the
    assault. In an affidavit submitted in support of North-Williams’s motion for
    summary judgment, Sandra Murphy, the Texas Department of Criminal Justice
    Administrator of Offender Grievances, stated that she had reviewed Stout’s
    2
    Case: 11-40740    Document: 00511822739      Page: 3    Date Filed: 04/16/2012
    No. 11-40740
    grievance records for the period between June 2008 and April 2009 and that four
    Step 1 grievances were returned unprocessed to Stout because of Stout’s failure
    to follow prison guidelines for filing grievances. The summary judgment
    evidence reflects that Stout failed to comply with the prison’s administrative
    deadlines and procedural rules and that he did not completely exhaust his
    administrative remedies with respect to his claims against North-Williams. See
    Woodford v. Ngo, 
    548 U.S. 81
    , 90-91 (2006); Johnson v. Johnson, 
    385 F.3d 503
    ,
    515 (5th Cir. 2004). The district court did not err in granting North-Williams’s
    motion for summary judgment. See Dillon, 
    596 F.3d at 266
    . The judgment is
    affirmed in part.
    Stout’s claims against LeBlanc, who was a State Classification Committee
    board member, pertain to her August 13, 2007, decision denying Stout placement
    in safe keeping. LeBlanc asserted in her motion for summary judgment that she
    had “found no record independent of the pleadings that Plaintiff ha[d] filed any
    grievance against her, either before or after the incident in question.” This
    statement was not verified and was not supported with an affidavit. Murphy did
    not state in her affidavit that she had reviewed Stout’s grievance records for the
    period between LeBlanc’s adverse decision and June 2008. LeBlanc has failed
    to carry her initial burden of proof as to her affirmative defense that Stout failed
    to exhaust his administrative remedies. See Jones, 
    549 U.S. at 216
    ; Dillon, 
    596 F.3d at 266
    .
    Stout attached to his verified motion to alter or amend the judgment
    documents indicating that he filed Step 1 grievance number 2007208753
    complaining of life endangerment on August 15, 2007, and that he filed a Step
    2 grievance in the same matter on December 28, 2007. This new evidence
    indicated that there was a genuine issue of fact as to whether Stout had
    exhausted his claims against LeBlanc. See Johnson, 
    385 F.3d at 515
    .
    The district court erred in granting LeBlanc’s motion for summary
    judgment, and it abused its discretion in denying the motion to alter or amend
    3
    Case: 11-40740   Document: 00511822739     Page: 4   Date Filed: 04/16/2012
    No. 11-40740
    the judgment. See Dillon, 
    596 F.3d at 266
    ; Johnson v. Diversicare Afton Oaks,
    L.L.C., 
    597 F.3d 673
    , 677 (5th Cir. 2010). The judgment is vacated in part and
    remanded for further proceedings.
    AFFIRMED IN PART, VACATED IN PART AND REMANDED.
    4