McKinney v. Painter ( 2022 )

Case: 19-50010 Document: 00516186359 Page: 1 Date Filed: 01/31/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
January 31, 2022
No. 19-50010 Lyle W. Cayce
Clerk
Arthur Luther McKinney,
Plaintiff—Appellant,
versus
Gary Painter, Sheriff, Midland County; Rebecca Graham,
Captain; Benito Alaniz, Officer; FNU Henery, Officer; FNU
Ramirez, Officer; FNU Domiss, Bailiff; FNU Mchaney,
Lieutenant; FNU Kimo, Sergeant; FNU Mayhart, Sergeant; John
Doe, 1–10,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:17-CV-67
Before Owen, Chief Judge, and Clement and Engelhardt, Circuit
Judges.
Per Curiam:*
*
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opinion should not be published and is not precedent except under the limited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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Arthur Luther McKinney files this pro se appeal of the district court’s
dismissal of his civil rights claims under 42 U.S.C. § 1983 against various
officials and officers of Midland County (the Defendants). McKinney also
appeals the district court’s denial of his motion for reconsideration. The
Defendants failed to submit any briefing.
For the reasons that follow, we AFFIRM.
I.
A.
The facts relevant to this appeal cluster around two incidents of
alleged excessive force at the Midland County Central Detention Center (the
“Detention Center”): one incident with Defendant Officer Benito Alaniz
and an unrelated incident with the John Doe Defendants. Because the
grievance process at the Detention Center plays a central role in the
resolution of this appeal, we briefly describe the adopted two-step inmate
grievance procedure before discussing the facts.
In Step One, the prisoner shall file the grievance “in the form of a
written statement promptly following the incident.” Upon receipt, the
grievance officer reviews and categorizes the grievance as (1) a proscribed act
by a staff member, (2) a civil rights violation, (3) an unjust denial of inmate
privileges, or (4) a criminal act. Then, the grievance officer or a designee will
investigate fully and “[a]ppropriate action to redress the grievance will be
taken.” To complete Step One, the grievance officer must submit a written
response, including “findings and actions employed by the investigating
officer” within 60 days, “with [an] interim response not to exceed fifteen
(15) days.” And “[a] copy of all findings and responses to the inmate
grievance will be placed in the grievance folder.” The ball is then back in the
prisoner’s court for Step Two, in which he “may appeal his case to the
Sheriff using the same form as if he were preparing an original grievance and
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also stating he was not satisfied with the investigation and outcome of the
original grievance.”
The first incident of alleged excessive force occurred on June 13, 2015,
while McKinney was incarcerated at the Detention Center. To place the
event in context, McKinney had already filed three grievances expressing
fear for his safety based on an April 29, 2015 incident where Alaniz allegedly
threatened him, grabbed him by the shirt, and pulled him around. McKinney
claims that Alaniz followed through on a “premeditated plan to assault” him
on June 13, when Alaniz allegedly threw him against a wall, placed his hand
around his neck and choked him, threw him over a table, grabbed him by his
hair, took a set of keys in one hand, and repeatedly punched him in the head
and the ear with the keys. The incident allegedly resulted in significant
bleeding, knots on his head, and two holes in his ear, which required nine
stitches from the hospital. McKinney submitted grievances about the
incident on June 17 and June 20.
A fellow prisoner supported this account, declaring that McKinney
had to be “carried . . . away” while others “mopped up the blood.” Officers
Villanueva, Lucio, Groessel, Salcido, and Strambler, who reported to the
incident, also took note of the blood. For example, Villanueva reported
“blood all over the floor and on the table,” including “a trail . . . to where
McKinney was on the floor.” Lucio reported that McKinney “was curled
up into a fetal position in a pool of blood.” Groessel reported that
“McKinney was laying face down in a fetal position . . . bleeding profusely.”
He also confirmed that McKinney suffered visible injuries: “three lacerations
to the right side of his head: one on his temple, the other two on his ear.”
On July 2, McKinney received responses to both grievances. The
response to the June 17 grievance did not acknowledge the alleged assault.
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The response to the June 20 grievance stated simply that the grievance was
being “forwarded to [the Criminal Investigation Division].”
McKinney followed up on his grievances ten times to ask for the
findings and conclusions of the investigation. The responses he received are
confusing. He was first told his grievance was “[a]lready answered.” The
next two responses did not acknowledge the alleged assault. The following
three responses, all dated the same day, stated that “[t]hese allegations will
be investigated.” The next response stated: “Grievance forwarded to CID
via email.” Then, nine days later: “You have already been provided a[n]
answer.” The final two responses stated: “N/C.” The record does not
reflect that McKinney received any other responses.
The second incident of excessive force occurred, according to
McKinney, while he was a pretrial detainee “being booked into the Midland
Co[unty] Jail.” He alleged that, “an unknown jailer started choking him for
no just cause and several unknown jailers got involved and used a weapon on
[him] for no just cause.”
B.
In April 2017, McKinney sued various officials of Midland County in
federal district court, alleging claims under 42 U.S.C. § 1983 of excessive
force; threats by employees; failure to protect; constant fear for safety; unjust
punishment; failure to supervise, discipline, and train; retaliation; denial of
medical treatment; equal protection; municipal liability; and state-created
danger theory. The district court adopted the Report and Recommendation
of the magistrate judge and dismissed all claims save the excessive force claim
against Alaniz.
McKinney then filed an Amended Complaint, reasserting the claims
in his original Complaint and adding facts to support the claim of excessive
force against the John Doe Defendants. But his claim still lacked the names
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of the alleged assailants, the exact date, and a statement on the severity of his
injury.
Alaniz moved for summary judgment on the excessive force claim
against him, which the district court granted on the grounds that McKinney
failed to exhaust the administrative grievance process. In the same order, the
court dismissed McKinney’s Amended Complaint for failure to state a claim
and frivolousness. McKinney moved for reconsideration under Federal Rule
of Civil Procedure 59(e). The district court denied the motion. McKinney
timely appealed. 1
On appeal, he contends that the district court erred (1) by granting
summary judgment and denying reconsideration under Rule 59(e) on the
excessive force claim against Alaniz; and (2) by dismissing his Amended
Complaint for failure to state a claim and as frivolous. 2
II.
McKinney challenges the district court’s grant of summary judgment
in favor of Alaniz on the excessive force claim and the denial of
reconsideration of that order under Rule 59(e). The district court
1
The district court denied McKinney’s motion to proceed In forma Pauperis (IFP)
on appeal. In November 2019, we barred McKinney from proceeding IFP in any civil action
or appeal while he is incarcerated or detained unless he is under imminent danger of serious
physical injury. However, McKinney filed the IFP motion in this case in February 2019,
nine months prior to our sanction. We allowed McKinney to proceed IFP in the instant
appeal.
2
McKinney also challenges the dismissal of the remaining claims in his Complaint,
and as reasserted in his Amended Complaint, for failure to state a claim. We did not certify
him to proceed IFP on appeal of these issues. Even with the liberal construction granted
to pro se litigants, McKinney provided no legal argument to support a basis for preserving
those claims on appeal. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). He has thus failed
to present them sufficiently and we do not address them. See Yohey v. Collins, 985 F.2d
222, 224–25 (5th Cir. 1993).
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determined that McKinney failed to exhaust the available administrative
remedies because he received an appealable response and failed to appeal it.
A.
We review the grant of summary judgment de novo and apply the same
standard as the district court. Austin v. Kroger Tex., L.P., 864 F.3d 326, 328
(5th Cir. 2017) (per curiam). Summary judgment is appropriate only “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).
“A genuine issue of material fact exists when the evidence is such that a
reasonable jury could return a verdict for the non-moving party.” Austin,
864 F.3d at 328 (citation omitted). At summary judgment, we “construe all
facts and inferences in the light most favorable to the nonmoving party.”
Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010) (citation omitted). But
“conclusional allegations and unsubstantiated assertions may not be relied
on as evidence by the nonmoving party.” Carnaby v. City of Hous., 636 F.3d
183, 187 (5th Cir. 2011).
The denial of a motion for reconsideration under Rule 59(e) is
reviewed for an abuse of discretion. See In re Life Partners Holdings, Inc., 926
F.3d 103, 128 (5th Cir. 2019). To survive scrutiny, the district court’s
decision must only be “reasonable.” Midland W. Corp. v. FDIC, 911 F.2d
1141, 1145 (5th Cir. 1990).
B.
Under the Prison Litigation Reform Act (PLRA), “[n]o action shall
be brought with respect to prison conditions under section 1983 . . . by a
prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” 42 U.S.C. §
1997e(a). We take “a ‘strict’ approach” to exhaustion and require prisoners
“not just [to] substantially comply with the prison’s grievance procedures
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but . . . [to] ‘exhaust available remedies properly.’” Wilson v. Epps, 776 F.3d
296, 299–300 (5th Cir. 2015) (quoting Dillon, 596 F.3d at 268). Exhaustion
requires “complet[ing] the administrative review process in accordance with
the applicable procedural rules,” Woodford v. Ngo, 548 U.S. 81, 88 (2006),
which “are defined not by the PLRA, but by the prison grievance process
itself,” Jones v. Bock, 549 U.S. 199, 218 (2007). Because exhaustion is an
affirmative defense, Alaniz carries the burden to demonstrate that McKinney
failed to exhaust the available remedies. See Dillon, 596 F.3d at 266.
“Exceptions to the exhaustion requirement are appropriate where the
available administrative remedies either are unavailable or wholly
inappropriate to the relief sought, or where the attempt to exhaust such
remedies would itself be a patently futile course of action.” Fuller v. Rich, 11
F.3d 61, 62 (5th Cir. 1994) (per curiam) (citation omitted). These exceptions
“apply only in ‘extraordinary circumstances,’” and the petitioner has the
burden to establish that administrative review would be futile. Id. (citation
omitted).
McKinney concedes that he did not file an administrative appeal of his
grievance. Nonetheless, he contends that the district court granted summary
judgment in error because the record supports a genuine dispute of material
fact on whether he received an appealable response (Step One) and therefore
had the opportunity to appeal the resolution of his initial grievance (Step
Two). We disagree.
A prison’s failure to respond to a prisoner’s grievance can establish
the exhaustion of administrative remedies where the prisoner nonetheless
proceeded through all steps of the grievance process. As we have explained:
Section 1997e’s exhaustion requirement is satisfied only if the
prisoner “pursue[s] the grievance remedy to conclusion.”
Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001). This
requirement does not fall by the wayside in the event that the
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prison fails to respond to the prisoner’s grievance at some
preliminary step in the grievance process. Instead, the prison’s
failure to timely respond simply entitles the prisoner to move
on to the next step in the process. Thus, it is only if the prison
fails to respond at the last step of the grievance process that the
prisoner becomes entitled to sue, because then there is no next
step (save filing a lawsuit) to which the prisoner can advance.
Wilson, 776 F.3d at 301; see also Taylor v. Burns, 371 F. App’x 479, 481 (5th
Cir. 2010) (per curiam) (“The expiration of the time for the prison to
respond would result in exhaustion only if [the prisoner] had timely pursued
his grievance at each step of the process.”).
After McKinney filed the June 20 grievance against Alaniz, he
received the July 2 Response stating that the grievance had been “forwarded
to [the Criminal Investigation Division].” He then proceeded to follow up
on his grievance numerous times. Even assuming the July 2 Response did
not constitute an appealable response under the terms of the grievance
procedure, the prison’s failure to respond would only result in exhaustion if
McKinney had still “pursue[d] the grievance remedy to conclusion” as
required by the PLRA. Wright, 260 F.3d at 358. In other words, the prison’s
failure to respond within sixty days—as required by the grievance
procedure—simply authorized McKinney to proceed to Step Two and
“appeal his case to the Sheriff . . . and also stat[e] he was not satisfied with
the investigation and outcome of the original grievance.” That McKinney
did not do so ends the matter.
McKinney failed to administratively appeal his grievance to the
Sheriff as the Detention Center’s grievance procedure required.
Accordingly, there is no genuine issue of material fact as to whether he failed
to exhaust his administrative remedies, and summary judgment was
appropriate on his excessive force claim against Alaniz.
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III.
McKinney also challenges the district court’s dismissal of the
excessive force claim against the John Doe Defendants for failure to state a
claim and for frivolousness. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b). Our
review is de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005) (per
curiam) (reviewing de novo where district court referred to both §§
1915(e)(2)(B) and 1915A). We accept the facts alleged in the Amended
Complaint as true and construe them in the light most favorable to the
plaintiff. See Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 419 (5th
Cir. 2017) (per curiam).
Under § 1915A(b)(1), where a prisoner seeks relief from a
governmental entity or employee, a district court must, as a threshold matter,
dismiss any portion of the complaint that “is frivolous, malicious or fails to
state a claim upon which relief may be granted.” 28 U.S.C. § 1915A(b)(1).
Whether a complaint fails to state a claim under § 1915A(b)(1) or its sister
statute, § 1915(e)(2)(B), follows the pleading standard under Federal Rule of
Civil Procedure 12(b)(6). See Black v. Warren, 134 F.3d 732, 733–34 (5th Cir.
1998) (per curiam). A complaint is frivolous if it has no “arguable basis in
fact or law.” Morris v. McAllester, 702 F.3d 187, 189 (5th Cir. 2012). See
Iqbal, 556 U.S. at 678 (holding that, under Rule 12(b)(6), “a complaint must
contain sufficient factual matter, accepted as true, ‘to state a claim to relief
that is plausible on its face’” (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
The district court dismissed the excessive force claim against the John
Doe Defendants “as utterly conclusory” and “completely fail[ing] to allege
any facts (who, what, when).” We agree that the claim failed to meet the
pleading standards.
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Before a district court dismisses a pro se complaint, it must generally
give notice of the perceived inadequacy of the complaint and an opportunity
to correct any deficiencies. See Brown v. Taylor, 829 F.3d 365, 370 (5th Cir.
2016). We have previously encouraged district courts to allow pro se plaintiffs
proceeding IFP discovery to identify a John Doe Defendant for service of
process. See, e.g., Murphy v. Kellar, 950 F.2d 290, 293 (5th Cir. 1992); Cowart
v. Dall. Cnty. Jail, 439 F. App’x 332, 332–33 (5th Cir. 2011) (per curiam).
Even reading the Amended Complaint liberally, McKinney failed to
provide sufficient factual details to proceed on his claim. He failed to provide
a date the alleged assault occurred, any identifying description of the alleged
assailant jailers, and, critically, that he suffered any injuries as a result.
The district court properly dismissed the claim for failing to assert
sufficient factual allegations. See Iqbal, 556 U.S. at 678.
* * *
We AFFIRM the September 28, 2018 Final Order of the district
court granting summary judgment and dismissing the Amended Complaint.
And we AFFIRM the December 10, 2018 Order of the district court
denying reconsideration under Federal Rule of Civil Procedure 59(e).
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