     Case: 18-60311   Document: 00514959871   Page: 1   Date Filed: 05/16/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                         United States Court of Appeals
                                                                  Fifth Circuit
                              No. 18-60311                      FILED
                            Summary Calendar                May 16, 2019
                                                           Lyle W. Cayce
                                                                Clerk
DERRICK SUMRALL,

                                         Plaintiff-Appellant

v.

MARCUS DAVIS; DEMTRE RAY; JOHN DOE JOHNSON; TIMOTHY
MORRIS; LT. THIGPEN,

                                         Defendants-Appellees
______________________

DERRICK SUMRALL,

                                         Plaintiff-Appellant

v.

MARCUS DAVIS; DEMTRE RAY; JOHN DOE JOHNSON; JOHN DOE
MEGATRON; TIMOTHY MORRIS; WENDELL BANKS; LT. THIGPEN,

                                         Defendants-Appellees


                Appeals from the United States District Court
                   for the Northern District of Mississippi
                            USDC No. 4:16-CV-34
                            USDC No. 4:16-CV-47
     Case: 18-60311      Document: 00514959871         Page: 2    Date Filed: 05/16/2019


                                      No. 18-60311

Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Derrick Sumrall, formerly inmate # R8429 in the custody of the
Mississippi Department of Corrections, appeals the summary judgment
dismissal without prejudice of his 42 U.S.C. § 1983 civil rights action. The
district court determined that Sumrall failed to exhaust his available
administrative remedies.
       Sumrall does not contest the district court’s conclusion that the
Mississippi Department of Corrections’ administrative remedy program was
available to him, because an ordinary prisoner could discern or navigate the
process. Nor does he challenge the district court’s finding that he failed to
exhaust the available administrative remedies by failing to properly refile his
grievance. Lastly, Sumrall does not renew his arguments before the district
court that special circumstances – specifically the Appellees’ failure to inform
him in any understandable language that he needed to refile his
administrative remedy grievance – justified his failure to comply with the
administrative remedy program procedures. As such, Sumrall has abandoned
these issues on appeal. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993).
       Rather, Sumrall alleges that the Mississippi Department of Correction’s
administrative remedy was unavailable to him because he did not receive
notice of the inadequacy of his grievance within the administrative remedy
program’s five (5) day time limit for him to make corrections.                  Sumrall’s
arguments and factual allegations were not raised before the district court and,



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.



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                                 No. 18-60311

thus, should not be considered by this court for the first time on appeal. James
v. McCaw Cellular Commc’ns, Inc., 988 F.2d 583, 585 (5th Cir. 1993); see also
Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986) (attorney-prepared briefs
not entitled to benefit of liberal construction).      Nevertheless, Sumrall’s
argument is unavailing in that it is based upon a misinterpretation or
misreading of the applicable administrative remedy program. See Miss. Dep’t
of       Corrections,        Inmate        Handbook,          available       at
https://www.mdoc.ms.gov/Inmate-Info/Documents/CHAPTER_VIII.pdf (“If a
request is rejected for technical reasons or matters of form, the inmate shall
have five days from the date of rejection to file his/her corrected grievance.”).
Sumrall failed to show the existence of a genuine issue of material fact in
dispute regarding his failure to exhaust his administrative remedies or the
availability of those remedies. Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir.
2010).
      Accordingly, the district court’s judgment is AFFIRMED.




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