Calderon v. Hutto ( 2023 )

Case: 22-20582 Document: 00516831058 Page: 1 Date Filed: 07/24/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-20582 FILED
July 24, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
Agustin Calderon,
Plaintiff—Appellant,
versus
Assistant Warden T. Hutto; Captain Austin; Jeffrey
Richardson, Senior Warden; Mental Health Doctor Ortiz;
Major Bobby Rigsby; Caleb Brumley,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:21-CV-812
______________________________
Before Stewart, Dennis, and Willett, Circuit Judges.
Per Curiam:*
Agustin Calderon, Texas prisoner # 2200225, appeals the dismissal
without prejudice of his civil rights complaint for failure to exhaust
administrative remedies. On appeal, he contends that the district court erred
by dismissing his claims for failure to exhaust his administrative remedies
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-20582 Document: 00516831058 Page: 2 Date Filed: 07/24/2023
No. 22-20582
because this failure can be excused by his allegations of imminent danger at
the time of filing. We review “the grant of summary judgment de novo,
applying the same standards as the district court.” Dillon v. Rogers, 596 F.3d
260, 266 (5th Cir. 2010) (internal quotation marks and citation omitted).
It is undisputed that Calderon failed to properly exhaust his
administrative remedies, insofar as he filed his federal complaint nearly one
month before he received a disposition of his Step Two appeal. See Johnson
v. Johnson, 385 F.3d 503, 515-16 (5th Cir. 2004); see also Gonzalez v. Seal, 702
F.3d 785, 788 (5th Cir. 2012) (“It is irrelevant whether exhaustion is achieved
during the federal proceeding.”). The question is whether, as Calderon
claims, this failure can be excused by his allegations of imminent danger at
the time of filing. It cannot.
We have addressed and rejected similar arguments in the context of
the danger posed by the COVID-19 pandemic and the aftermath of Hurricane
Katrina. See Valentine v. Collier, 978 F.3d 154, 160-62 (5th Cir. 2020)
(holding that the Prison Litigation Reform Act’s (PLRA) exhaustion
requirements were not excused by the COVID-19 pandemic); Dillon, 596
F.3d at 270 (rejecting the argument that an inmate’s failure to exhaust
administrative remedies should be excused based on the “reprehensible”
conditions at the temporary facility he was evacuated to following Hurricane
Katrina). “[E]mergencies are not license to carve out new exceptions to the
PLRA’s exhaustion requirement, an area where our authority is
constrained.” Valentine, 978 F.3d at 161 (internal quotation marks and
citation omitted).
AFFIRMED.
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