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. (Doc. # 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. (Doc. # 34). On March 24, 2017, the
remaining defendants, Gonzalez and Rathmann, moved for
summary judgment. (Doc. # 48) Baldomino responded on May 30,
2017. The Court denied that motion, finding that there was an
unresolved factual issue as to whether Baldomino properly
exhausted his administrative remedies.
18, 2017, Gonzalez and Rathmann filed an amended motion for
summary judgment. (Doc. # 52). Baldomino did not respond to
that motion. For the reasons stated below, the amended 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).
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 did
not respond to the amended motion for summary judgment, but
responded to the original motion with a lengthy discussion of
the merits of his claims and an assertion that he filed Step
2 grievances. He did 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”) (Doc. # 49), at Exhibits B
and C. Rather, he contended 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 4.
Court denied the defendants' original motion for summary
judgment, finding that the business records affidavit
accompanying the Step 1 grievances failed to state that the
attached records were a complete set of the relevant
grievances filed by Baldomino. This left open the possibility