Gonzalez v. Resendez ( 2023 )

Case: 22-40597 Document: 00516863679 Page: 1 Date Filed: 08/18/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 22-40597 August 18, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
Raul Gonzalez,
Plaintiff—Appellant,
versus
Sergeant Josie Resendez,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:18-CV-220
______________________________
Before Jones, Smith, and Ho, Circuit Judges.
Per Curiam:*
Raul Gonzalez, Texas prisoner # 2104383, sued Sergeant Josie
Resendez, an employee of the Texas Department of Criminal Justice
(TDCJ), under 42 U.S.C. § 1983, alleging that Resendez ordered the use of
excessive force against him in violation of the Eighth Amendment. The
_____________________
*
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should not be published and is not precedent except under the limited circumstances set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. 22-40597
district court entered summary judgment for Resendez, finding that
Gonzalez had failed to exhaust his available administrative remedies by
raising his excessive force claim only at the second step of the TDCJ’s two-
step grievance process. Gonzalez contends that he exhausted his excessive
force claim despite raising it only in his “step two” grievance because
(1) TDCJ rules do not require claims to first be raised in a “step one”
grievance and (2) the TDCJ denied his “step two” grievance on the merits.
Gonzalez further analogizes to Federal Rule of Civil Procedure 15(c),
averring that his “step two” grievance effectively related back to his
defective “step one” grievance.
We review a summary judgment de novo, using the same standard as
that employed by the district court. McFaul v. Valenzuela, 684 F.3d 564, 571
(5th Cir. 2012). Summary judgment is proper “if the movant shows 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).
Gonzalez’s arguments are unavailing. TDCJ inmates “must pursue a
grievance through both steps for it to be considered exhausted.” Johnson v.
Johnson, 385 F.3d 503, 515 (5th Cir. 2004). The TDCJ’s “step one”
grievance form explicitly instructs prisoners to state the “who, what, when,
and where” of their grievance, which Gonzalez failed to do with respect to
his excessive force claim. The “step two” form serves expressly as a means
to review the resolution of a prisoner’s “step one” grievance; it does not
suggest that prisoners may raise new claims for the first time. By raising his
excessive force claim only at step two, Gonzalez failed to comply with prison
grievance procedures. See Jones, 549 U.S. at 218; cf. Butts v. Martin, 877 F.3d
571, 583 (5th Cir. 2017).
Gonzalez is also incorrect that his excessive force claim was exhausted
because the TDCJ denied his “step two” grievance on the merits. The
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No. 22-40597
TDCJ’s response to Gonzalez’s “step two” grievance focused exclusively
on his properly raised claim of improper medical care. The TDCJ did not
resolve Gonzalez’s complaint of excessive force on substantive grounds. See
Gates v. Cook, 376 F.3d 323, 331 n.6 (5th Cir. 2004). Lastly, in light of the
TDCJ’s grievance rules, Gonzalez’s reliance on Rule 15(c) is misplaced.
Gonzalez fails to show a genuine and material dispute as to whether
he exhausted his available administrative remedies for purposes of § 1983.
See Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010). The district court
thus correctly entered judgment for Resendez as a matter of law. The
judgment is AFFIRMED.
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