George Espinal v. Duane Bemis , 464 F. App'x 250 ( 2012 )

Case: 11-10376 Document: 00511772540 Page: 1 Date Filed: 02/29/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 29, 2012
No. 11-10376
Summary Calendar Lyle W. Cayce
Clerk
GEORGE ESPINAL,
Plaintiff-Appellant
v.
DUANE BEMIS, Senior Chaplain,
Defendant-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:09-CV-55
Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
George Espinal, federal prisoner # 29798-054, appeals the dismissal of his
constitutional claims against Duane Bemis, prison chaplain. Espinal asserted
that Bemis violated several of his constitutional rights after Bemis denied
Espinal’s request to be placed on a kosher diet. The district court granted
Bemis’s motion for summary judgment, determining that Espinal had failed to
exhaust administrative remedies.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10376 Document: 00511772540 Page: 2 Date Filed: 02/29/2012
No. 11-10376
A Bivens1 action is analogous to a § 1983 action; the only difference is that
§ 1983 claims apply to constitutional violations by state actors and Bivens claims
apply to actions by federal officials. Izen v. Catalina, 398 F.3d 363, 367 n.3 (5th
Cir. 2005). This court does not distinguish between Bivens claims and § 1983
claims. Id. This court reviews a district court’s summary judgment dismissal
of a § 1983 complaint for failure to exhaust de novo. Dillon v. Rogers, 596 F.3d
260, 266 (5th Cir. 2010). The Prison Litigation Reform Act (PLRA) requires a
prisoner to exhaust his administrative remedies before he may file a § 1983 suit
against prison officials. 42 U.S.C. § 1997e(a). Exhaustion of administrative
remedies “means using all steps that the agency holds out, and doing so properly
(so that the agency addresses the issues on the merits).” Woodford v. Ngo, 548
U.S. 81, 90 (2006) (internal quotation marks and citation omitted).
Summary judgment in favor of Bemis on exhaustion grounds was proper
because it is undisputed that Espinal failed to file an appeal to either Cornell
Corporation or to the Bureau of Prisons National Inmate Appeals Administrator,
as required by the prison’s grievance procedures. See id. Espinal’s argument
that he was excused from filing the necessary appeals because prison officials
failed to respond to his grievances is without merit. Because his grievances were
deemed denied if prison officials failed to respond within 20 days, he was not
excused from filing subsequent appeals even if the prison failed to respond.
Additionally, his argument that prison staff confiscated legal papers that were
relevant to the exhaustion issue is likewise without merit; he did not allege what
documents were taken or that they were any of the forms required for him to
complete the exhaustion process.
Because Espinal has not shown “exceptional circumstances,” his motion
for the appointment of counsel is denied. See Santana v. Chandler, 961 F.2d
514, 515 (5th Cir. 1992); Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982).
1
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388(1971).
2
Case: 11-10376 Document: 00511772540 Page: 3 Date Filed: 02/29/2012
No. 11-10376
Finally, the district court’s partial dismissal of the complaint as frivolous
counts as a strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996); Patton v. Jefferson Correctional
Center, 136 F.3d 458, 460-64 (5th Cir. 1998). Espinal is cautioned that if he
accumulates three strikes under § 1915(g) he will be unable to proceed in forma
pauperis in any civil action or appeal filed while he is incarcerated or detained
in any facility unless he is under imminent danger of serious physical injury.
See § 1915(g).
AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED;
SANCTION WARNING ISSUED.
3