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Covarrubias v. Foxworth

United States District Court, E.D. Texas, Tyler Division

March 29, 2017

JAIME COVARRUBIAS
v.
TODD FOXWORTH, ET AL.

          MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE ON DEFENDANT WARDEN BERGER'S MOTION FOR SUMMARY JUDGMENTAND ORDER OF SEVERANCE AND FINAL JUDGMENT

          RON CLARK, UNITED SLATES DISTRICT JUDGE.

         The Plaintiff Jaime Covarrubias, proceeding pro se, filed this civil rights lawsuit under 42 U.S.C. §1983 complaining of alleged violations of his constitutional rights. This Court ordered that the case be referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3)

         and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges. The remaining Defendants in the case are Warden Larry Berger, Warden Todd Foxworth, and former Officer Brenda Mapps. This Memorandum Opinion concerns the motion for summary judgment filed by the Defendant Warden Berger.

         I. Background

         The remaining claims in the lawsuit are an unlawful strip search by Officer Mapps, unlawful sleep deprivation, and exposure to excessive heat. Warden Berger, the defendant identified for the heat claim, filed a motion for summary judgment arguing that Covarrubias failed to exhaust his administrative remedies on this claim.

         The summary judgment evidence showed that Covarrubias filed a grievance, which received no. 2013210333, complaining that for many months he had been subjected to excessive heat, but the grievance was rejected as untimely. He also filed grievance no. 2013172973, complaining of exposure to heat, but he did not receive a response to the Step Two appeal of this grievance until after the lawsuit was filed. In grievance no. 2013206806, Covarrubias raised 16 different issues, including heat exposure, but in accordance with TDCJ policy requiring that only one issue be raised per grievance, only the first issue raised, concerning a lack of hot water in his cell, received a response. The Step Two appeal of this grievance was provided after the lawsuit was filed. Covarrubias complained of heat and inadequate ventilation in grievance no. 2014140970, but this grievance was prepared after the lawsuit was filed.

         Warden Berger argued in his motion for summary judgment that under the Fifth Circuit's strict exhaustion standard, neither a grievance which is rejected as untimely nor completion of the grievance procedure after the lawsuit is filed serve to exhaust administrative remedies.

         In his response, Covarrubias argued: (1) he exhausted his administrative remedies prior to filing his amended complaint; (2) his grievance was not untimely because it concerned an ongoing problem; (3) the Defendants have had ample opportunity to address the problem; and (4) the court has discretion to determine that the two-day gap between the filing of his lawsuit and the return of his Step Two grievance is inconsequential or that the claim was exhausted upon the filing of the amended complaint.

         II. The Magistrate Judge's Report

         Upon review of the pleadings and the summary judgment evidence, the Magistrate Judge issued a Report stating that prisoners are required to exhaust administrative remedies before filing suit and that prisoners must comply with all administrative deadlines and procedural rules, including the time deadlines. District courts have no discretion to excuse a prisoner's failure to properly exhaust the grievance procedure before filing suit.

         The Magistrate Judge stated that Covarrubias' untimely grievance did not serve to exhaust administrative remedies and that the grievance process for his other complaints was not completed until after the lawsuit was filed. An amended complaint will not typically cure the failure to exhaust administrative remedies prior to initially filing suit. The Magistrate Judge therefore recommended that Warden Berger's motion for summary judgment be granted and this claim dismissed.

         III. Covarrubias' Objections

         In his objections, Covarrubias contends that he was not timely notified of an extension of time to respond to grievance no. 2013172973. He states that the rejection of his grievance as untimely was improper because the grievance described a situation that transpired within the grievable time period. He contends that he was on 11 Building, exposed to excessive heat from July 11 to August 12, 2013, and filed his grievance on August 22, 2013, within the 15-day deadline for filing grievances.

         Covarrubias' grievance reads in pertinent part as follows: “For many months now Administration has been using 11 Building, Transient, PHD [pre-hearing detention] and solitary cells to house close custody overflow. It was during one of these 30-day stays that I experienced and observed this predicament.” Although the grievance form instructs prisoners to “state who, what, when, where, and the disciplinary case number if appropriate, ” Covarrubias' grievance says nothing about dates or gives any indication of when Covarrubias was allegedly exposed to the condition complained of; it particularly does not state that Covarrubias had just recently been released from the building. Covarrubias has failed to show that his grievance was improperly rejected as untimely when every indication from the face of the grievance showed that it was in fact untimely. This objection is without merit. See also Gomez ...


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