Martinez v. Nueces County ( 2022 )

Case: 21-40209 Document: 00516509537 Page: 1 Date Filed: 10/14/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 14, 2022
No. 21-40209 Lyle W. Cayce
Summary Calendar Clerk
Fred G. Martinez,
Plaintiff—Appellant,
versus
Nueces County; Sheriff Jim Kaelin; All Booking
Officers Under His Direction, Individually and in their full
capacity; Officer Perales; Officer Zapata; Officer John
Doe; Texas Commission of Jail Standards; Inspector
Jackie Benningfield; Assistant Director Shannon J.
Herklotz,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:18-CV-158
Before Smith, Dennis, and Southwick, Circuit Judges.
Per Curiam:*
*
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opinion should not be published and is not precedent except under the limited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: 21-40209 Document: 00516509537 Page: 2 Date Filed: 10/14/2022
No. 21-40209
Fred G. Martinez, Texas prisoner # 2061834, filed a 42 U.S.C. § 1983suit against, inter alia, Officer Anthony Perales and Officer Javier Zapata
(defendants), in which he challenged the conditions of his confinement at the
Nueces County Jail (NCJ). The district court granted the defendants’
second motion for summary judgment for failure to exhaust administrative
remedies and dismissed Martinez’s claims against the defendants. He
appeals that judgment and also moves for leave to file an out-of-time reply
and leave to conduct additional discovery.
We review de novo a grant of summary judgment, applying the same
standard as the district court. Nickell v. Beau View of Biloxi, LLC, 636 F.3d
752, 754 (5th Cir. 2011). In general, summary judgment is appropriate if the
record discloses “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). A dispute about a material fact is “‘genuine’ . . . if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Challenging the district court’s grant of the defendants’ second
motion for summary judgment, Martinez contends that the defendants
waived the affirmative defense of exhaustion by not raising it in their first
motion for summary judgment. Martinez also asserts that administrative
remedies were unavailable because the NCJ grievance procedures were
ineffective. He further urges that the defendants engaged in fraud and that
the defendants’ untimely answer amounted to a waiver of the exhaustion
defense. Martinez also claims that delayed discovery of facts surrounding the
substantive nature of his claims implicated the requirement that he exhaust
administrative remedies.
Martinez’s waiver argument is unavailing as the defendants raised the
exhaustion defense in their answer to Martinez’s complaint. See Fed. R.
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No. 21-40209
Civ. P. 12(a)(1)(A), (b); Jones v. Bock, 549 U.S. 199, 216 (2007); Carbe v.
Lappin, 492 F.3d 325, 328 (5th Cir. 2007). To the extent Martinez challenges
the district court’s factual finding that he had not exhausted the NCJ
procedures, he has not established a genuine dispute regarding those facts as
he filed a grievance with the Texas Committee on Jail Standards rather than
complying with the NCJ grievance procedures. See Jones, 549 U.S. at 211;
Anderson, 477 U.S. at 248.
Additionally, Martinez’s mere disagreement with the effectiveness of
the NCJ grievance procedure is insufficient to overcome the exhaustion
requirement. See Porter v. Nussle, 534 U.S. 516, 523-24 (2002). He also has
not demonstrated a genuine factual dispute regarding fraud and its alleged
impact on the preservation of the defendants’ exhaustion defense. See
Anderson, 477 U.S. at 248. Similarly, Martinez has offered no support for his
claim that delayed discovery somehow excused him from the exhaustion
requirement. Therefore, the district court did not err in granting the
defendants’ motion for summary judgment. See id.; Nickell, 636 F.3d at 754.
Martinez also asserts that the district court erred by denying his
motions for default judgment based on an untimely answer by the defendants
to his complaint, but he has not demonstrated that this drastic remedy was
warranted. See Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001). Similarly,
although he raises several issues surrounding discovery in this matter,
Martinez has not demonstrated that either the district court or the
defendants committed any discovery violations.
Next, Martinez claims that the district court should have held an
evidentiary hearing in this matter so that he could have further developed his
claims against the defendants. However, Martinez does not argue that he had
evidence of exhaustion that he could have submitted if the district court had
conducted a hearing and has made no attempt to show how further factual
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No. 21-40209
development or discovery would have altered the outcome of his case. Given
Martinez’s failure to exhaust, a hearing to address evidence relating to
Martinez’s underlying civil rights claims was unnecessary. Martinez
therefore has not shown that the district court erred or abused its discretion
on this basis. See Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285-86 (5th
Cir. 1990).
Martinez also contends that the district court erred in denying his
motions for appointment of counsel, but he has not shown any abuse of
discretion by the court in its rulings. See Naranjo v. Thompson, 809 F.3d 793,
799 (5th Cir. 2015). Finally, although he asserts otherwise, Martinez has
shown no error in the magistrate judge making pretrial rulings in this matter
and issuing reports and recommendations to the district court judge. See 28
U.S.C. § 636(b)(1).
The judgment of the district court is AFFIRMED. The motion for
leave to file an out-of-time reply is GRANTED; the motion to strike the
appellees’ brief as untimely is DENIED; and the motion for leave to
conduct additional discovery is DENIED.
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