Gonzales v. Smith

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 23, 2008
No. 08-30223 Charles R. Fulbruge III
Summary Calendar Clerk
ANGELO GONZALES,
Plaintiff–Appellant,
v.
BLANDON SMITH, Lieutenant ; WADE RIGDON, Lieutenant ; TREY MOODY,
Sergeant; JOSH MILEY, Sergeant; MICKEY DILLON, Sergeant; CLIFF
TURNER, Sergeant; DEPARTMENT OF PUBLIC SAFETY AND
CORRECTIONS; UNIDENTIFIED PARTIES; JEFF WILLIAMS, Captain,
Defendants–Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:06-cv-11215
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Angelo Gonzales, Louisiana prisoner # 114052, appeals the dismissal of his
42 U.S.C. § 1983 complaint, in which he sought relief arising out of incidents on
July 17, 18, and 19, 2006. We review the dismissal of a complaint on the
pleadings de novo, employing the same standard applied to dismissals for failure
to state a claim under FED. R. Civ. P. 12(b)(6). Johnson v. Johnson, 385 F.3d
503, 529 (5th Cir. 2004). Finding no error, we affirm.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 08-30223
The Prison Litigation Reform Act requires prisoners to exhaust
administrative remedies prior to filing a § 1983 complaint challenging prison
conditions. 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 88-89 (2006).
Gonzales was required to file a grievance within ninety days of the alleged
incidents. LA. ADMIN. CODE tit. 22 § 325(A)(2) (2008); Johnson v. La. ex. rel. La.
Dept of Pub. Safety & Corr., 468 F.3d 278, 280 (5th Cir. 2006) (per curiam).
According to Gonzales’s own pleadings, including the complaint that he signed
under penalty of perjury, the earliest date that he submitted a grievance was
October 18, 2006, the ninety-first day after the July 19 incident.
Gonzales argues that he was prevented from timely filing because he was
denied access to writing materials. Gonzales did not raise this argument in the
district court, and we need not consider it here. See Leverette v. Louisville
Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999) (per curiam). Further, Gonzales’s
argument is conclusory and unsupported by any citations to evidence in the
record. In sum, the dismissal of Gonzales’s complaint for failure to exhaust
administrative remedies was not erroneous. Accordingly, we need not reach the
determination that the Louisiana Department of Public Safety and Corrections
is immune from suit under the Eleventh Amendment, although that
determination is supported by our precedent. See Champagne v . Jefferson
Parish Sheriff’s Office, 188 F.3d 312, 313-14 (5th Cir. 1999) (per curiam).
Finally, Gonzales has filed a motion for summary judgment in this
court. He must file any such motion in the district court.
The judgment is AFFIRMED. The motion for summary judgment is
DENIED.
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