Monty Shelton v. Beinvenido Leon , 648 F. App'x 491 ( 2016 )

Case: 14-41292 Document: 00513514567 Page: 1 Date Filed: 05/20/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-41292
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
May 20, 2016
MONTY SHELTON,
Lyle W. Cayce
Clerk
Plaintiff-Appellant,
v.
BEINVENIDO LEON, Unit Counselor; MICHAEL MATTIS, Treatment
Specialist; PATRICK POWDRILL, Treatment Specialist,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:12-CV-461
Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Monty Shelton, federal prisoner # 10426-078, brought this Bivens action
against the defendants, alleging that they violated his Eighth Amendment
rights by failing to protect him from another inmate. The district court
dismissed Shelton’s complaint under 28 U.S.C. § 1915 after determining that
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-41292
the complaint was time barred. Our review is de novo. Harris v. Hegmann,
198 F.3d 153, 156 (5th Cir. 1999).
Under the Prison Litigation Reform Act, exhaustion of administrative
remedies is “required for any suit challenging prison conditions,” including a
Bivens claim. Woodford v. Ngo, 548 U.S. 81, 85 (2006). As the district court
noted, Shelton concedes that even to date, he has never exhausted his
administrative remedies. See Huff v. Neal, 555 F. App’x 289, 292–93 (5th Cir.
2014) (describing the Bureau of Prisons’ four-step administrative process for
resolving grievances by inmates, which generally requires an inmate to file
within twenty days of the incident both an informal resolution form (BP–8) and
a formal Administrative Remedy Request (BP–9) to begin the process).
Shelton argues that he is entitled to equitable tolling because he was
transferred to state custody a mere three days after the assault and was not
provided federal administrative forms. However, he was returned to federal
custody in 2005 and yet still waited until 2012 to file any administrative form
with the Bureau of Prisons (BOP). 1 Even if Shelton had had the benefit of
equitable tolling during the time he was in state custody, his 2012 filing still
would not have met the twenty-day deadline for filing the BP-8 and BP-9
forms. Furthermore, Shelton has never filed the remaining administrative
forms necessary to exhaust his administrative remedies. See Huff, 555 F.
App’x at 293 (explaining that there are four steps to exhausting BOP
1 Shelton argues that he should be exempt from the administrative deadlines because
when he returned to federal custody in 2005 and attempted to utilize the administrative
process, his counselor told him it was too late to file a grievance since the assault had occurred
thirteen months earlier. While we have granted equitable tolling when a defendant “has
actively misled a plaintiff about the cause of action or has prevented him ‘in some
extraordinary way from asserting his rights,’” Shelton’s counselor’s advice was technically
correct and, more importantly, there is no evidence the defendants actually prevented
Shelton from filing an administrative form. Wilson v. US Penitentiary Leavenworth, 450 F.
App’x 397, 399 (5th Cir. 2011) (quoting Teemac v. Henderson, 298 F.3d 452, 456 (5th Cir.
2002)).
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No. 14-41292
administrative remedies, which requires filing forms BP–8 through BP–11,
and “[a]n inmate has not exhausted his administrative remedies until his claim
has been denied at all levels”). Because Shelton has not exhausted his
administrative remedies, the district court properly dismissed his complaint.
Woodford, 548 U.S. at 90, 93–94 (holding that exhaustion of administrative
remedies is still required to bring a federal suit, even when administrative
remedies are no longer available due to the inmate’s failure to meet the
administrative deadlines: “Proper exhaustion demands compliance with an
agency's deadlines and other critical procedural rules . . . .”).
AFFIRMED.
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