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 William Pierce, an inmate of the Texas Department
of Criminal Justice, Correctional Institutions Division
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
former TDCJ-CID Director William Stephens, Region II Director
Kelvin Scott, Warden Edgar Baker, Warden Larry Berger,
Michael Unit Classification Director Mark Sandlin, Practice
Manager Pam Pace, present TDCJ-CID Director Lorie Davis,
Executive Director Bryan Collier, Warden Carol Monroe, and
Warden Deborah Cockrell. Of these Defendants, Stephens,
Scott, Baker, Berger, Pace, and Sandlin were named in
Pierce's original complaint, while Collier, Monroe, and
Cockrell were added in the amended complaint.
original complaint, Pierce complained of being housed in 8
Building and in 12 Building at various times. He asserted
that these are high-security buildings and thus inappropriate
places in which to house minimum-custody prisoners such as
himself. Pierce also complained of the conditions of
confinement on 12 Building, stating that he could not go to
the law library, he was handcuffed whenever he left his cell,
he could not go to outside recreation, and he could not watch
TV. He also contended that the windows could not be opened
and it was difficult for him to breathe because he has
chronic obstructive pulmonary disorder (COPD).
amended complaint, Pierce complained of an incident which
occurred on July 27, 2017, in which he was assaulted by a
cellmate who was 34 years old (42 years younger than Pierce).
He contended that TDCJ-CID rules prohibit housing prisoners
with an age difference of more than 15 years.
to the filing of Pierce's amended complaint, the
Magistrate Judge ordered the prison officials to file a
Martinez Report providing documents relevant to his
claims. Pierce received a copy of the Martinez
Report and was given the opportunity to file a response,
which he did.
Defendant Pam Pace filed a motion to dismiss, and the other
Defendants filed a separate motion to dismiss. Pierce did not
file responses to either of these motions.
The Report of the Magistrate Judge
review of the pleadings and records, the Magistrate Judge
issued a Report recommending that the lawsuit be dismissed.
The Magistrate Judge observed that Pierce's pleadings
showed and the Martinez Report confirmed that Pierce
had pursued two grievances through both steps of the TDCJ
administrative remedy procedure. Neither of these grievances
raised any complaints against Pace, the medical department,
or his medical treatment in general. The Magistrate Judge
therefore concluded that Pierce had failed to exhaust his
administrative remedies against Pace and her motion to
dismiss should be granted on this basis.
two grievances which the uncontroverted evidence showed were
pursued through both steps of the administrative remedy
procedure, the Magistrate Judge stated that grievance no.
2015118836 did not exhaust any of the claims raised in this
lawsuit because the Step One grievance concerned Pierce's
placement on 12 Building, while the Step Two grievance
concerned 8 Building. The Magistrate Judge stated that in
order for prisoners of the Texas Department of Criminal
Justice -Correctional Institutions Division to exhaust an
issue properly, that issue must be presented in a Step One
grievance and then appealed to Step Two. New issues cannot be
raised for the first time in a Step Two grievance appeal and
only one issue per grievance may be presented. Randle v.
Woods, 299 Fed.Appx. 466, 2008 U.S. App. LEXIS 24138,
2008 WL 4933754 (5th Cir., November 19, 2008), citing
Woodford v. Ngo, 548 U.S. 81, 92-93, 126 S.Ct. 2378, 165
L.Ed.2d 368 (2006) and Johnson v. Johnson, 385 F.3d
503, 515 (5th Cir. 2004); see also TDCJ Offender
Orientation Handbook, p. 74 (inmates may present only one
issue per grievance).
other grievance which Pierce pursued through both steps of
the TDCJ-CID grievance procedure was no. 2015113176, which
complained of his placement on 12 Building. This grievance
properly raised two issues at both steps, these being the
claims that Pierce was improperly placed on 12 Building and
that he cannot open the windows to get fresh air. The
Magistrate Judge thus determined that these two issues were
The Exhausted Claims
argued that he was improperly placed on 12 Building because
that is an administrative segregation area and he is in
minimum custody. The Magistrate Judge stated that there was
no federal constitutional right to be housed in any
particular part of a prison. Furthermore, Pierce's
pleadings showed and the Martinez Report confirmed
that Pierce was only held on 12 Building for short periods of
time, including from November 5, 2014 to December 3, 2014 and
from March 18, 2015 to April 2, 2015. The Magistrate Judge
stated that these brief ...