Anthony Thomas v. John Mills ( 2017 )

Case: 16-10061 Document: 00514251995 Page: 1 Date Filed: 11/28/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-10061 FILED
Summary Calendar November 28, 2017
Lyle W. Cayce
Clerk
ANTHONY DESHAWN THOMAS,
Plaintiff-Appellant
v.
DOCTOR JOHN MILLS, Medical Director; D. PEYTON; TARRANT COUNTY
HOSPITAL DISTRICT,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:14-CV-9
Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
Anthony Deshawn Thomas, Texas prisoner # 1864213, proceeding pro se
and in forma pauperis, appeals the district court’s judgment on remand
granting the defendants’ motion for summary judgment and dismissing his
42 U.S.C. § 1983 complaint for failure to exhaust administrative remedies.
Thomas has filed a motion for the appointment of counsel, a motion to amend
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-10061 Document: 00514251995 Page: 2 Date Filed: 11/28/2017
No. 16-10061
the caption to reflect that he brought suit against the defendants in their
official and individual capacities, and a motion requesting that this court take
judicial notice of certain evidence.
Under the Prison Litigation Reform Act (PLRA), “[n]o action shall be
brought with respect to prison conditions under section 1983 of this title, or
any other Federal law, 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). The PLRA’s exhaustion requirement is
mandatory, Jones v. Bock, 549 U.S. 199, 211 (2007), and this court takes a
strict approach to the exhaustion requirement, Cowart v. Erwin, 837 F.3d 444,
451 (5th Cir. 2016).
The crux of Thomas’s argument on appeal is there exists a genuine issue
of material fact regarding whether his alleged failure to exhaust his
administrative remedies was the fault of the defendants and others at the
Tarrant County Jail. His argument is refuted by competent summary
judgment evidence showing that he failed to properly exhaust his available
remedies, see Cowart, 837 F.3d at 451, and is insufficient to show that
summary judgment was improper, see Jones v. Lowndes County, Miss.,
678 F.3d 344, 348 (5th Cir. 2012). Even if the responses he received to his
grievances created some confusion about the appropriate grievance procedure,
Thomas was repeatedly advised, in writing, that he had 30 days to appeal to
the Inmate Grievance Appeal Board and that the grievance appeals procedure
was set forth in the inmate handbook, which the evidence shows he received
and which was readily available in the confinement areas. Further, although
Thomas has provided a handwritten letter entitled “Appeal Grievance /
Letter,” this document is presented for the first time on appeal. Although we
review de novo the district court’s decision to grant summary judgment, we
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No. 16-10061
will not consider this evidence as it was “not presented to the district court for
its consideration in ruling on the motion.” Grogan v. Kumar, ___F.3d___, No.
15-60678, 2017 WL 4324977, at *3 (5th Cir. Sept. 29, 2017) (internal quotation
marks and citations omitted).
Accordingly, the district court’s judgment is AFFIRMED. Because the
issue of exhaustion is not complex and Thomas has demonstrated that he is
capable of adequately presenting his case, Thomas’s motion for the
appointment of counsel is DENIED. All other motions are also DENIED.
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