Danny Busher v. Marie Taylor

Case: 12-41165 Document: 00512471651 Page: 1 Date Filed: 12/16/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 12-41165 December 16, 2013
Summary Calendar
Lyle W. Cayce
Clerk
DANNY L. BUSHER,
Plaintiff-Appellant
v.
MARIE TAYLOR,
Defendant-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:12-CV-255
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Danny L. Busher, Texas prisoner # 1744900, has appealed the
magistrate judge’s order and judgment dismissing his civil rights complaint
with prejudice because Busher failed to exhaust his administrative remedies
with respect to his claims against Marie Taylor, who was a nurse at the Smith
County Jail, where Busher was incarcerated. See Dillon v. Rogers, 596 F.3d
260, 265 (5th Cir. 2010). After convening an evidentiary hearing, the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 12-41165 Document: 00512471651 Page: 2 Date Filed: 12/16/2013
No. 12-41165
magistrate judge found that Busher failed to pursue relief through the jail’s
grievance system. We review this finding for clear error. See id. at 273.
A fact finder’s choice between two permissible views of the evidence
cannot be clearly erroneous, even if the reviewing court would have weighed
the evidence differently. Sockwell v. Phelps, 20 F.3d 187, 190 (5th Cir. 1994).
“A finding of fact is clearly erroneous only if the reviewing court, after
reviewing the entire record, is convinced that the trial court made a mistake.”
Id.
Busher asserts that an officer helped him to file a grievance; that Taylor
had access to his inmate files and served as a record keeper and administrator
at the jail; that Taylor removed his grievances from his files; and that Taylor’s
testimony at the hearing was untruthful. Busher contends that he has been
wronged and that he should have his day in court.
There is no support in the record for Busher’s contention that Taylor’s
testimony was untruthful or that she removed grievances from Busher’s files.
Busher has not shown that the magistrate judge clearly erred in crediting
Taylor’s testimony and in finding that Busher had failed to pursue relief
through the jail’s grievance system. See Sockwell, 20 F.3d at 190. The
judgment is AFFIRMED. Busher’s request for appointment of counsel is
DENIED. See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987); Ulmer v.
Chancellor, 691 F.2d 209, 213 (5th Cir. 1982).
2