Davis v. Turner ( 2023 )

Case: 22-60299 Document: 00516724119 Page: 1 Date Filed: 04/25/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 22-60299 April 25, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
Kevin Terrance Davis,
Plaintiff—Appellant,
versus
Marshall Turner, Superintendent; Timothy Morris, Warden;
Leather Williams, K9 Commander; Donovan Clarke, K9
Sergeant,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:20-CV-55
______________________________
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam: *
Pro se prisoner Kevin Davis brought this suit to challenge the
conditions of his confinement under 42 U.S.C. § 1983. Below, the parties
consented to proceed to judgment before a magistrate judge. The magistrate
_____________________
*
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opinion should not be published and is not precedent except under the limited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: 22-60299 Document: 00516724119 Page: 2 Date Filed: 04/25/2023
No. 22-60299
judge granted summary judgment in favor of the defendants because Davis
failed to exhaust his administrative remedies for his claims. See 42 U.S.C.
§ 1997e; see also Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004). Davis
appeals.
To exhaust, a prisoner must “complete the administrative review
process in accordance with the applicable procedural rules.” Jones v. Bock,
549 U.S. 199, 218, 127 S. Ct. 910, 922 (2007). Davis filed a “sensitive issue”
grievance, but the prison administrative remedy program director
determined that the issue was not “sensitive” and told the prisoner that he
must file his grievance through the regular channels. See MDOC Inmate
Handbook at 17, available at http://www.mdoc.ms.gov/Inmate-
Info/Documents/CHAPTER_VIII.pdf. Rather than do so, Davis elected to
file this suit. He claims that he exhausted when he filed his “sensitive issue”
grievance, but the state grievance procedures clearly require him to proceed
through the regular channels if his issue is deemed not sensitive. Therefore,
he has not exhausted his administrative remedies. Accordingly, the
judgment below is AFFIRMED. We GRANT the motion to file a reply
brief out of time, but DENY AS MOOT the motion to appoint counsel.
2