Ornelas v. Haynes ( 2021 )

Case: 21-40297 Document: 00516149973 Page: 1 Date Filed: 12/30/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 30, 2021
No. 21-40297
Summary Calendar Lyle W. Cayce
Clerk
Juan Javier Ornelas,
Plaintiff—Appellant,
versus
Leontyne Haynes,
Defendant—Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:18-CV-65
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Juan Javier Ornelas, Texas prisoner # 01758617, filed a pro se civil
rights complaint under 42 U.S.C. § 1983, alleging that while he was confined
at the Eastham Unit within the Texas Department of Criminal Justice
(TDCJ), Leontyne Haynes retaliated against him for reporting a sexual
*
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opinion should not be published and is not precedent except under the limited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.
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No. 21-40297
assault. Haynes served as the Eastham Unit’s Safe Prisons Officer and was
responsible for documenting and reporting claims of sexual abuse.
Ornelas argues that the district court erred in granting Haynes’s
motion for summary judgment and dismissing his § 1983 claim for failure to
exhaust his administrative remedies. He also moves for the appointment of
counsel. This court reviews the grant of summary judgment de novo and
applies the same standard used by the district court. Nickell v. Beau View of
Biloxi, L.L.C., 636 F.3d 752, 754 (5th Cir. 2011).
According to Ornelas, he complied with the prison’s informal
reporting process by submitting a letter to the TDCJ’s Office of the Inspector
General (OIG). Even if his OIG letter were sufficient to exhaust
administrative remedies, Ornelas makes no mention of any retaliation by
Haynes for filing a grievance. Ornelas cannot avoid summary judgment by
resting on “unsubstantiated assertions” and “conclusory claims” that he
complied with the TDCJ’s informal reporting process. Duffie v. United
States, 600 F.3d 362, 371 (5th Cir. 2010).
Ornelas further argues that the “ordinary” two-step grievance
process was not available to him because Haynes and “other unit officials”
used intimidation to prevent him from filing a formal grievance. As Haynes
points out, however, the numerous grievances submitted by Ornelas around
the time of the alleged retaliation belie his claim that the ordinary grievance
process was unavailable to him. See Ross v. Blake, 578 U.S. 632, 644 (2016).
Ornelas next argues that his Step Two grievance gave the TDCJ fair
notice of his retaliation claim and satisfied the exhaustion requirement. The
TDCJ provides a two-step process for filing grievances, and a prisoner must
pursue a grievance through both steps to satisfy the exhaustion requirement.
See Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004). Though Ornelas
mentioned Haynes’s retaliation in the last sentence of his Step Two
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No. 21-40297
grievance, he did not raise any claim of retaliation against Haynes in a Step
One grievance. Because he did not comply with all administrative remedies
and procedural rules, he has failed to exhaust his administrative remedies.
See id.Finally, Ornelas argues that because his grievance was decided on the
merits, Haynes has waived any argument of failure to exhaust his
administrative remedies. Though the TDCJ’s OIG opened an investigation
into Ornelas’s allegations of sexual assault, there is no evidence that his
claims of retaliation raised in the related Step Two grievance were ever
addressed on the merits. Accordingly, Haynes has not waived her argument
that Ornelas’s claims of retaliation are unexhausted, and the district court
did not err in dismissing Ornelas’s claims based on failure to comply with the
TDCJ’s grievance process. See Gates v. Cook, 376 F.3d 323, 331 n.6 (5th Cir.
2004).
Based on the foregoing, the judgment of the district court is
AFFIRMED. Ornelas’s motion for the appointment of counsel is
DENIED.
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