United States District Court, E.D. Texas, Tyler Division
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL
Clark, United States District Judge.
Plaintiff Shannon Hamilton, a former inmate of the Anderson
County Jail proceeding pro se, filed this civil
rights lawsuit under 42 U.S.C. §1983 complaining of
alleged violations of his constitutional rights. This Court
referred the case 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 named
Defendants are the Anderson County Sheriff, an officer named
Cowen, and an unidentified nurse.
amended complaint, the operative pleading in the case, raised
two claims. These are (1) Officer Cowen smoked in the hall on
numerous occasions, including July 15, 2015, despite being
told by Hamilton that the smoke was affecting his asthma, and
(2) he sent a request to the nurse on September 21, 2015,
asking to be seen for a toothache and a lump on the outside
of his gums, but he never received a response.
Defendants filed a motion for summary judgment asserting that
Hamilton failed to exhaust his administrative remedies. The
Defendants contended that the Anderson County Jail has inmate
service requests as well as inmate grievance forms and that
the jail has a three-step grievance procedure involving
filing a grievance with the jail lieutenant, appealing an
unfavorable response to the captain, and a further appeal to
the sheriff. Although Hamilton filed nine inmate service
requests during his stay in the jail, the Defendants argue
that he did not pursue the grievance process through all
available steps. One of Hamilton's inmate service
requests complained of a headache and asked for an asthma
inhaler, but none mentioned Officer Cowen smoking in the hall
or a toothache.
response to the motion for summary judgment, Hamilton
asserted that he included a copy of his grievance with his
initial disclosures, which he filed with the Court and
requested the Clerk to send the Defendants a copy. Of the
documents filed by Hamilton, one is an inmate grievance form
complaining of a toothache and asking to see the nurse. The
response from Lt. Pierson reads “will inform the
nurse.” Hamilton also included a handwritten witness
statement form saying that Hamilton had complained to an
inspector from the Texas Commission on Jail Standards about
the air quality as well as a handwritten form entitled
“documented video recordings that show Mr. Cowen
smoking and also shows Mr. Green not providing plaintiff with
medical treatment.” While this document provides a list
of dates and times, there are no copies of the video
recordings attached, nor did Hamilton indicate that he had
watched any such recordings or otherwise had personal
knowledge of their contents.
Defendants' reply maintains that Hamilton did not furnish
any competent summary judgment evidence and that even if his
documents were considered, none of them demonstrate that
Hamilton exhausted his administrative remedies.
filed a sur-reply asserting that he could not make the
necessary copies of grievances but that he had sent the court
a copy of his grievance, which he contended was sufficient to
overcome the motion for summary judgment.
The Report of the Magistrate Judge
review of the pleadings and the summary judgment evidence,
the Magistrate Judge issued a Report recommending that the
Defendants' motion for summary judgment on the issue of
exhaustion be granted. The Magistrate Judge observed that
prisoners are required to exhaust all available
administrative remedies before filing suit in federal court,
including compliance with all administrative deadlines and
procedural rules. Woodford v. Ngo, 548 U.S. 81,
89-95, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). All of the
steps in the facility's grievance procedure must be
pursued in order to exhaust administrative remedies.
Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir.
2004). Conclusory allegations of exhaustion are not
sufficient to overcome competent summary judgment evidence
demonstrating lack of exhaustion. Kidd v.
Livingston, 463 F.App'x 311, 2012 U.S. App. LEXIS
3970, 2012WL614372 (5th Cir., February 28, 2012);
accord, Ryan v. Phillips, 588 F.App'x
477, 2014 U.S. App. LEXIS 5087, 2014 WL 1346550 (5th Cir.,
March 18, 2014).
present case, the Magistrate Judge determined that while
Hamilton filed a grievance on September 23, 2015 complaining
of a toothache, there was no showing that he ever appealed
this grievance to the captain or the Sheriff. Hamilton also
offered no summary judgment evidence showing that he ever
filed a grievance concerning Officer Cowen smoking in the
hall. Because Hamilton did not pursue any of his complaints
through all three steps of the jail's grievance
procedure, the Magistrate Judge concluded that Hamilton
failed to exhaust his administrative remedies.
objections, Hamilton asserts that according to the Anderson
County Sheriff's grievance procedure, if a prisoner
believes he has a legitimate grievance, he can ask the floor
officer for a grievance form, which can be returned to a
floor failure to forward to the lieutenant or be placed
directly in the grievance box. Hamilton contends that this is
the only step set out in the grievance procedure and that
therefore, this procedure consists of only one step. Because
he complied with this step, Hamilton maintains that he has
exhausted his administrative remedies.
also asserts that his grievance complaining of a toothache
and headache stated that this condition could result in a
dental abscess. He makes no mention ...