Edward Mesquiti v. Andres Gallegos , 427 F. App'x 377 ( 2011 )

Case: 10-40569 Document: 00511500978 Page: 1 Date Filed: 06/07/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 7, 2011
No. 10-40569
Summary Calendar Lyle W. Cayce
Clerk
EDWARD ACUNA MESQUITI,
Plaintiff-Appellant
v.
ANDRES GALLEGOS, JR., McConnell Unit; CRAIG PINNEY, McConnell Unit,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:09-CV-136
Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
Edward Acuna Mesquiti, Texas prisoner # 1107834, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 complaint, which alleged that he had
been assaulted by two prison guards. The district court granted summary
judgment for the defendants based on Mesquiti’s failure to exhaust
administrative remedies. Mesquiti argues that, because his Step 1 grievance
was never returned, he could not file a Step 2 grievance under prison rules.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40569 Document: 00511500978 Page: 2 Date Filed: 06/07/2011
No. 10-40569
Therefore, he argues that he has exhausted his administrative remedies or that
his failure to exhaust should be waived.
This court reviews a grant of summary judgment de novo. Freeman v.
Texas Dep’t. of Crim. Justice, 369 F.3d 854, 859 (5th Cir. 2004). Summary
judgment is appropriate if the records discloses genuine issue of material fact
and that the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56. A prisoner who wishes to file a § 1983 suit against prison officials must
exhaust his administrative remedies before doing so. 42 U.S.C. § 1997e(a);
Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004). To properly exhaust
administrative remedies, the prisoner must “pursue the grievance remedy to
conclusion.” Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001). A
grievance must be pursued through both steps of the prison’s grievance system
before it can be considered exhausted. See Johnson, 385 F.3d at 515.
There is no dispute that Mesquiti did not submit a Step 2 grievance. The
crux of Mesquiti’s argument is that, because his Step 1 grievance was never
returned, submission of a Step 2 grievance would have been futile. However, the
Supreme Court has held there is no futility exception to the exhaustion
requirement. See Booth v. Churner, 532 U.S. 731, 741 n.6 (2001). Mesquiti’s
failure to pursue his grievance remedy to conclusion constitutes a failure to
exhaust his administrative remedies. See Wright, 260 F.3d at 358.
Accordingly, the district court’s judgment is AFFIRMED.
2