     Case: 09-11045     Document: 00511075465          Page: 1    Date Filed: 04/09/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                             April 9, 2010
                                     No. 09-11045
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

BRADY HICKS, JR.,

                                                   Plaintiff-Appellant

v.

DEPUTY/JAILER J. GARCIA, Tarrant County Sheriff,

                                                   Defendant-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:06-CV-311


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Brady Hicks, Jr., Texas prisoner # 1254510, appeals
the district court’s final judgment dismissing his 42 U.S.C. § 1983 civil rights
complaint against Deputy/Jailer J. Garcia for failure to exhaust administrative
remedies. Hicks contends that the district court erred when, sua sponte, it
dismissed his claims against Deputy Garcia prior to service of process and
without affording notice and an opportunity to respond. We affirm.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-11045

      “Notwithstanding any filing fee, or any portion thereof, that may have
been paid,” the district court must dismiss an in forma pauperis complaint if, at
any time, it determines that the action is frivolous or fails to state a claim on
which relief may be granted. 28 U.S.C. § 1915(e)(2)(B). Further, 28 U.S.C. §
1915A requires that the district court screen complaints filed by a prisoner
seeking redress from a government officer or employee and dismiss claims that
the court determines to be frivolous or malicious, or that fail to state a claim on
which relief may be granted. § 1915A(a), (b)(1).
      Under the Prison Litigation Reform Act, inmates must exhaust “such
administrative remedies as are available” prior to bringing a civil action.
§ 1997e(a). Failure to exhaust is an affirmative defense, and “inmates are not
required to specifically plead or demonstrate exhaustion in their complaints.”
Jones v. Bock, 549 U.S. 199, 216 (2007). Although district courts may not screen
prisoners’ complaints for failure to plead exhaustion, they may, sua sponte,
“dismiss a case prior to service on defendants for failure to state a claim,
predicated on failure to exhaust, if the complaint itself makes clear that the
prisoner failed to exhaust.” Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007).
“[We review] a district court’s dismissal of a prisoner’s complaint for failure to
exhaust de novo.” Id. at 327.
      When he was a pretrial detainee in the Tarrant County Jail (TCJ) and was
restrained in a restraint chair, Hicks was assaulted by a fellow inmate. In his
amended complaint, Hicks alleged that he filed grievances complaining of the
assault and attached copies of three grievances he had filed while in the TCJ.
Hicks also alleged that the TCJ did not maintain a two-step grievance procedure
and that TCJ officials never responded to his grievances.
      As we have previously noted, “[t]he TCJ provides a two-step procedure for
presenting a grievance: (1) an inmate must send a written statement directly to
the Grievance Board, which should respond within 60 days, then (2) if an inmate
is dissatisfied with the Grievance Board’s response, he may appeal in writing to

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                                 No. 09-11045

the Inmate Grievance Appeal Board within five days of receiving the written
response to his grievance.” Hicks v. Tarrant County Texas, 345 F. App’x 911, 913
(5th Cir. 2009); Hicks v. Deputy Parker, No. 08-11015, 2009 WL 2762302 at *2
(5th Cir. Sept. 1, 2009) (unpublished). Accepting Hicks’s allegations as true, he
exhausted the first step of the two-step grievance procedure once the 60-day
period for responding had expired. See Underwood v. Wilson, 151 F.3d 292, 295
(5th Cir. 1998) (overruled on other grounds). Because he did not appeal the
Grievance Board’s decisions (or lack thereof) by filing a step-two grievance,
however, Hicks’s failure to pursue his grievance remedy to conclusion
constituted a failure to exhaust his administrative remedies. See Wright v.
Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001).
      Hicks’s amended complaint and our prior decisions make clear that he
failed to exhaust his administrative remedies and thus failed to state a claim on
which relief may be granted. Therefore, the district court did not err when it
dismissed Hicks’s claims against Deputy Garcia sua sponte prior to service of
process. See Carbe, 492 F.3d at 328. The record shows that the exhaustion issue
was thoroughly briefed and that Hicks was given adequate notice that his claims
were subject to dismissal for failure to exhaust administrative remedies.
Finally, the record does not support Hicks’s contention that he filed petitions for
certiorari in Hicks v. Tarrant County Texas and Hicks v. Deputy Parker. See
Hicks, 345 F. App’x at 911; Hicks, 2009 WL 2762302 at *1. Accordingly, the
district court’s judgment is
AFFIRMED.




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