United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
KENNETH M. HOYT UNITED STATES DISTRICT JUDGE
Alexander Baldomino filed a complaint under 42 U.S.C. §
1983 alleging violations of his Eighth Amendment rights. On
September 4, 2014, this Court dismissed defendant William
Stephens from this case. (Dkt. No. 29). On October 24, 2014,
this Court dismissed without prejudice plaintiff's claims
against defendant Rapher for failure to timely serve him with
a summons and complaint. (Dkt. No. 34). On March 24, 2017,
the remaining defendants, Gonzalez and Rathmann, moved for
summary judgment. (Dkt. No. 48) Baldomino responded on May
30, 2017. For the reasons stated below, the motion for
summary judgment by defendants Gonzalez and Rathmann is
times relevant to this case, Baldomino was an inmate in, and
defendants Gonzalez and Rathmann were Corrections Officers
employed by, the Texas Department of Criminal Justice
(“TDCJ”) . Plaintiff alleges that defendants
failed to intervene promptly when he was attacked by another
inmate, and that he has received inadequate medical treatment
for injuries he sustained in that attack.
Standard of Review
judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). In
considering a motion for summary judgment, the
“evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in his favor.”
Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986).
Once the movant presents evidence demonstrating entitlement
to summary judgment, the nonmovant must present specific
facts showing that there is a genuine issue for trial.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986).
Exhaustion of Remedies
bringing a federal lawsuit challenging prison conditions, a
prisoner must first exhaust available administrative
remedies. 42 U.S.C. § 1997e(a); Jones v. Bock,
549 U.S. 199 (2007).
The Texas prison system has developed a two-step formal
grievance process. The Step 1 grievance, which must be filed
within fifteen days of the complained-of incident, is handled
within the prisoner's facility. After an adverse decision
at Step 1, the prisoner has ten days to file a Step 2
grievance, which is handled at the state level. This court
has previously held that a prisoner must pursue a grievance
through both steps for it to be considered exhausted.
Johnson v. Johnson, 385 F.3d 503, 515
(5th Cir., 2004) . Defendants argue that Baldomino
filed a Step 1 grievance concerning the alleged attack, and a
Step 1 grievance regarding the allegedly inadequate medical
care, both of which were denied. They further contend that he
failed to file a Step 2 grievance regarding either complaint.
submit copies of Baldomino's Step 1 grievances,
accompanied by an affidavit establishing that these
grievances were kept in the ordinary course of business.
See Summary Judgment Motion, Exh. A. Baldomino
responds with a lengthy discussion of the merits of his
claims, and an assertion that he filed Step 2 grievances, but
he does not attach any copies of his Step 2 grievances or any
evidence supporting his claim that he filed such grievances.
See Response to Motion for Summary Judgment
(“Response”) (Dkt. No. 49), at Exhibits B and C.
Rather, he contends that he has attempted to obtain copies of
his Step 2 grievances, but that the prison library will not
provide them until he pays a fee for the copies. Response at
business records affidavit accompanying the Step 1 grievances
states, in relevant part: “I have reviewed the
grievance records for Offender Baldomino . . . for the time
period of October 2012 to [February 26, 2014]. The records
attached hereto are the original or exact duplicates of the
originals.” Dkt. No. 48, Exh. A. Conspicuously absent
from the affidavit is any statement that the attached records
are a complete set of the relevant grievances filed by
Baldomino. This leaves open the possibility that his Step 2
grievances were filed, but are not attached to the affidavit.
Accepting the business records affidavit as true, it
nonetheless fails to disprove Baldomino's claim that he
filed Step 2 grievances. The defendants therefore fail to
demonstrate the absence of any disputed material fact
regarding Baldomino's exhaustion of administrative
remedies, and are not entitled to summary judgment.