Kennemer v. Pittman

Case: 21-40120 Document: 00516341625 Page: 1 Date Filed: 06/02/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 21-40120 June 2, 2022
Summary Calendar Lyle W. Cayce
Clerk
John David Kennemer,
Plaintiff—Appellant,
versus
Kristi L. Pittman, Warden; Chibuike Onwuka, Major; James
I. Laws, Lieutenant; Linda Hone, Ramsey Unit Grievance Investigator;
Jeffrey Alford, Kitchen Manager III; George Flores, Kitchen
Manager III,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:20-CV-123
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
John David Kennemer, former Texas prisoner # 2197180, filed a pro
se complaint raising claims under 42 U.S.C. § 1983 and the Americans with
*
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opinion should not be published and is not precedent except under the limited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. 21-40120
Disabilities Act against three employees of the Texas Department of
Criminal Justice (TDCJ). He later filed an amended complaint naming three
additional TDCJ employees. The district court granted summary judgment
in favor of the defendants and dismissed Kennemer’s claims because he
failed to exhaust available administrative remedies. Kennemer argues that
this grant of summary judgment was erroneous and premature.
With respect to timing, Kennemer maintains that the district court
should have provided him an opportunity to respond to a supplemental
defense filing and to obtain testimony from defendant Linda Hone. Our
review is for an abuse of discretion. See Prospect Cap. Corp. v. Mut. of Omaha
Bank, 819 F.3d 754, 757 (5th Cir. 2016); In re Stone, 986 F.2d 898, 902 (5th
Cir. 1993). Kennemer does not explain what new facts he expected to learn
from Hone or how they would have influenced the disposition of the
summary judgment motion. Nor does he demonstrate prejudice based on the
inability to submit further briefing. He thus fails to show that the district
court erred by deciding the summary judgment motion prematurely. See
Prospect Cap. Corp., 819 F.3d at 757; In re Stone, 986 F.2d at 902.
Kennemer also fails to show that the district court erred in granting
summary judgment because he failed to exhaust administrative remedies. See
Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010). This court takes a strict
approach to the exhaustion requirement, holding that prisoners must exhaust
available remedies properly. Wilson v. Epps, 776 F.3d 296, 299-300 (5th Cir.
2015). The competent summary judgment evidence shows that Kennemer
did not exhaust his administrative remedies, and his contention that the
prison grievance process was unavailable to him finds no arguable basis in the
record. See Wilson, 776 F.3d at 299-300; Duffie v. United States, 600 F.3d
362, 371 (5th Cir. 2010); Dillon, 596 F.3d at 266. Kennemer also suggests
that summary judgment was improper because he has shown that there is
merit to his substantive claims alleging violations of his constitutional rights.
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No. 21-40120
However, district courts “have no discretion to excuse a prisoner’s failure to
properly exhaust the prison grievance process before filing their complaint.”
Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012).
Accordingly, the district court’s judgment is AFFIRMED.
Kennemer’s motion for the appointment of counsel is DENIED, and his
motion for a decision on the briefs is DENIED.
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