Bisby v. Garza , 342 F. App'x 969 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 28, 2009
No. 08-40876
Summary Calendar Charles R. Fulbruge III
Clerk
JERRY L BISBY
Plaintiff-Appellant
v.
Sergeant KIMBERLY GARZA, Building Supervisor Sergeant, McConnell Unit;
AMERICAN CORRECTION ASSOCIATION; Warden OSCAR MENDOZA,
McConnell Unit
Defendants-Appellees
***********************************************************
JERRY LYNN BISBY
Plaintiff-Appellant
v.
AMERICAN CORRECTIONAL ASSOCIATION
Defendant-Appellee
***********************************************************
JERRY LYNN BISBY
Plaintiff-Appellant
v.
OSCAR MENDOZA, Warden-McConnell Unit
Defendant-Appellee
No. 08-40876
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:07-CV-404
USDC No. 2:07-CV-423
USDC No. 2:07-CV-424
Before GARZA, CLEMENT and OWEN, Circuit Judges.
PER CURIAM:*
Jerry Lynn Bisby appeals from the grant of summary judgment for two
defendants and the dismissal of his claim against another defendant for failure
to exhaust administrative remedies. Bisby slipped and fell in his cell on July 4,
2007, resulting in three 42 U.S.C. § 1983 actions that were consolidated by the
district court. The defendants in Bisby’s actions were Sergeant Kimberly Garza,
Warden Oscar Mendoza, and the American Correctional Association (ACA).
This court reviews de novo a grant of summary judgment. Cousin v.
Small, 325 F.3d 627, 637 (5th Cir. 2003). Summary judgment is proper “if the
pleadings, the discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(c). “[T]he party
moving for summary judgment must ‘demonstrate the absence of a genuine issue
of material fact,’ but need not negate the elements of the nonmovant’s case.”
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the moving party meets the
initial burden of showing that there is no genuine issue, the burden shifts to the
nonmovant to set forth specific facts showing the existence of a genuine issue for
trial. F ED. R. C IV. P. 56(e). The nonmovant cannot satisfy his summary
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
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No. 08-40876
judgment burden with conclusional allegations, unsubstantiated assertions, or
only a scintilla of evidence. Little, 37 F.3d at 1075.
Bisby contends that Garza was deliberately indifferent to his serious
medical needs by ordering him back to his cell and denying him immediate
medical treatment after his fall. The record, however, indicates that Bisby was
seen within hours of his slip and fall, and it does not indicate that his pain was
sufficiently severe during the period between his fall and his examination by
medical personnel to give rise to an Eighth Amendment violation. Cf. Easter v.
Powell, 467 F.3d 459, 464-65 (5th Cir. 2006) (holding that a prisoner may recover
damages for pain suffered during delay of treatment).
Bisby contends that there is a genuine issue of material fact as to whether
grievance remedies were unavailable to him as to Mendoza and Bisby’s
conditions of confinement claim because grievance personnel failed to return his
step-one grievance he had filed about his leaky cell and the black mold growing
inside it. He argues that the exhaustion requirement should have been deemed
satisfied by the failure to return his grievance. He states that he made
Mendoza, Garza, and the ACA aware of constitutional violations via letters he
wrote, but that they refused to remedy them. Also, an outside organization
called “The Eyes of Justice” wrote letters informing the defendants of
unconstitutional living conditions at the unit. Bisby seeks to rely on carbon
copies of I-60 request forms sent to Mendoza to show exhaustion and seeks to
rely on Abraham Weber’s case, no. 2:04-CV-00378, to argue that officials were
put on notice of conditions at the unit in 2004.
Under 42 U.S.C. § 1997e(a), “[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.” The purposes of this
exhaustion requirement are to “give an agency an opportunity to correct its own
mistakes with respect to the programs it administers before it is haled into
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No. 08-40876
federal court” and to allow for claim resolution in proceedings before an agency
because it is faster and more economical than litigation in federal court.
Woodford v. Ngo, 548 U.S. 81, 89 (2006) (quoting McCarthy v. Madigan, 503 U.S.
140, 145 (1992)). This court reviews a district court’s dismissal of a prisoner’s
§ 1983 complaint for failure to exhaust de novo. Carbe v. Lappin, 492 F.3d 325,
327 (5th Cir. 2007).
“The PLRA requires exhaustion of ‘such administrative remedies as are
available.’” Jones v. Bock, 549 U.S. 199, 217 (2007) (quoting § 1997e(a) and
rejecting Sixth Circuit rule requiring claimant to name all defendants in initial
grievance). Proper exhaustion requires that the prisoner not only pursue all
available avenues of relief but also comply with all administrative deadlines and
procedural rules. Woodford, 548 U.S. at 89-93. A prisoner cannot satisfy the
exhaustion requirement “by filing an untimely or otherwise procedurally
defective administrative grievance or appeal.” Id. at 83-84.
The Texas prison system has a two-step formal grievance process.
Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004). “[A] prisoner must
pursue a grievance through both steps for it to be considered exhausted.” Id.(citing Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001)).
“[E]xhaustion is not per se inadequate simply because an individual later sued
was not named in the grievances.” Jones, 549 U.S. at 219. The amount of
information necessary depends on the type of problem about which the inmate
is complaining. Johnson, 385 F.3d at 517. This court has noted that “the
primary purpose of a grievance is to alert prison officials to a problem, not to
provide personal notice to a particular official that he may be sued.” Id. at 522.
However, “the grievance must provide administrators with a fair opportunity
under the circumstances to address the problem that will later form the basis of
the suit, and . . . will often require, as a practical matter, that the prisoner’s
grievance identify individuals who are connected with the problem.” Id. Thus,
where an inmate complains of improper conduct by a guard, “the administrators
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No. 08-40876
responding to the grievance would want to know . . . who was involved and when
the incident occurred, or at least other available information about the incident
that would permit an investigation of the matter.” Id. at 517.
The only unprocessed grievance in the record was directed at Garza’s
conduct after Bisby slipped and fell, though Bisby did allege that he was told he
would be moved to a non-leaky cell. The grievance did not mention mold, and
it only mentioned water as being there when he slipped and fell. The
unprocessed grievance would not have put Mendoza on notice that the watery,
moldy conditions of Bisby’s cell were being challenged by Bisby.
Bisby did include copies of five I-60s from May through August 2007
directed to Mendoza complaining of mold and water leaks, but I-60s are not a
part of the two-step TDCJ formal grievance procedure Bisby is required to
exhaust. See T EXAS D EP’T OF C RIMINAL J USTICE, O FFENDER O RIENTATION
H ANDBOOK, 52-54 (2004). Bisby submitted an I-60 to the grievance department--
and not Mendoza--inquiring about the unprocessed grievance. 2d Supp. R. 24.
Prisoners are directed to use I-60s to complain about the adequacy of grievance
procedures. See O FFENDER H ANDBOOK at 59. However, the I-60 about the
unprocessed grievance was not addressed to Mendoza. Moreover, the grievance
in question would not have put Mendoza on notice that Bisby intended to pursue
a formal grievance against him. See Johnson, 385 F.3d at 522.
Section 1997e(a) does not explicitly allow one prisoner to rely on another
prisoner’s grievances or litigation to show exhaustion. See § 1997e(a). Moreover,
Bisby does not allege that the conditions of his own cell were, or could have been,
raised by Weber in 2004. Bisby has not shown that the Weber’s legal action
amounted to an exhaustion of Bisby’s prison grievances.
Bisby contends that the American Correctional Association (ACA)
conspired with prison officials to fraudulently accredit the McConnell Unit. He
concedes that the ACA was a private actor. In order to hold the ACA liable on
Bisby’s Section 1983 claim on a conspiracy theory, the ACA must have engaged
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No. 08-40876
in a conspiracy with state actors to violate his constitutional rights. See Cinel
v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994). To make such a claim actionable,
the private and the public actors must have entered into an agreement to
commit an illegal act, and a plaintiff’s constitutional rights must have been
violated. Id. A plaintiff must “allege specific facts to show an agreement.”
Priester v. Lowndes County, 354 F.3d 414, 421 (5th Cir. 2004).
Bisby alleges in conclusional terms that the ACA conspired with prison
officials to falsely accredit the McConnell Unit. The evidence indicated no
genuine issues of material fact as to whether the ACA conspired with prison
officials to violate Bisby’s constitutional rights. The district court did not err by
granting summary judgment for the ACA. See F ED. R. C IV. P. 56(e); Priester, 354
F.3d at 421.
Bisby argues that food at the McConnell Unit is inadequate during
lockdown periods. The magistrate judge denied Bisby’s motion to amend his
complaint to add this claim, and the district court denied his motion for a
preliminary injunction as to food during lockdown periods. Bisby does not argue
that the rulings of the magistrate judge and the district court were erroneous.
Bisby has failed to brief the dispositive issue for appeal. See Brinkmann v.
Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Bisby contends that the district court erred by denying his motions to
conduct an investigation and to inspect the prison, in which he requested that
the court or an appointee inspect the unit on a rainy day so they could witness
water entering the cell and black mold on the walls. The magistrate judge
denied two such motions.
“The district court has broad discretion in discovery matters and its
rulings will be reversed only on an abuse of that discretion.” Scott v. Monsanto
Co., 868 F.2d 786, 793 (5th Cir. 1989). Generally, summary judgment may be
granted only after an “adequate time for discovery.” Celotex, 477 U.S. at 322.
However, a plaintiff’s entitlement to discovery prior to a ruling on a motion for
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No. 08-40876
summary judgment is not unlimited, and may be cut off when the record shows
that the requested discovery would not be “likely to produce the facts needed by
[a] plaintiff to withstand a Rule 56(e) motion for summary judgment.” Paul
Kadair, Inc. v. Sony Corp. of Am., 694 F.2d 1017, 1029-30 (5th Cir. 1983).
The district court disposed of Bisby’s conditions of confinement claim
against Mendoza for failure to exhaust administrative remedies and his claim
against ACA for lack of state action. The district court did not need to reach the
issue whether the McConnell Unit was watery and moldy due to leaks, and no
discovery was necessary as to that issue. The denial of Bisby’s motions was not
an abuse of discretion. See Scott, 868 F.2d at 793.
Bisby contends that the district court erred by failing to hold a trial on his
allegations. He alleges that he knows of numerous potential witnesses who
would testify about longstanding, substandard conditions in the unit and about
Garza’s historic animosity towards men and her poor treatment of prisoners
generally.
Bisby misses the point of summary judgment proceedings. No trial is
necessary if a plaintiff fails to satisfy his summary judgment burden, see Little,
37 F.3d at 1075, and Bisby did not satisfy that burden when given the
opportunity to do so. Nor did he prove exhaustion of remedies as to Mendoza.
Bisby argues that the magistrate judge erred by denying his motion for
appointment of counsel. He argues that he was entitled to appointment of
counsel because he lacks legal knowledge and has to rely on other prisoners who
may or may not be trained in legal research. He alleges that counsel could have
conducted a more effective investigation than he was able to conduct.
A district court may appoint counsel in a section 1983 case if exceptional
circumstances exist. This court reviews a district court’s denial of a motion for
appointment of counsel under the abuse of discretion standard. Cupit v. Jones,
835 F.2d 82, 86 (5th Cir. 1987) (citations omitted).
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The denial of Bisby’s appointment of counsel motions was not an abuse of
discretion. Bisby’s claims against Garza and Mendoza were garden variety
Eighth Amendment claims with simple fact patterns. His claim against the ACA
was simply without merit. The record indicates that Bisby was familiar with
prison grievance procedures and was able to present his claims to the district
court adequately. Bisby’s case did not present exceptional circumstances
warranting the appointment of counsel. See Cupit, 835 F.2d at 86.
Bisby achieved three-strike status under 28 U.S.C. § 1915(g) after he filed
the notice of appeal in this case. Bisby v. Crites, 312 F. App’x 631 (5th Cir.
2009), petition for cert. filed (May 7, 2009) (No. 08-10338). Bisby is reminded
that he is barred from proceeding in forma pauperis (IFP) 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.
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