     Case: 09-10426     Document: 00511054035          Page: 1    Date Filed: 03/17/2010




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

                                                  FILED
                                                                           March 17, 2010
                                     No. 09-10426
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

BRADY HICKS, JR.,

                                                   Plaintiff-Appellant

v.

Deputy/Jailer LINGLE, 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 granting Defendant-Appellee’s motion to
dismiss Hick’s 42 U.S.C. § 1983 civil rights complaint for failure to exhaust
administrative remedies. Hicks contends that the district court improperly went
beyond the pleadings and failed to accept the facts alleged in his amended
complaint as true, and that he exhausted all administrative remedies available
to him in accordance with 42 U.S.C. § 1997e(a). 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-10426

      We review the grant of a motion to dismiss pursuant to F ED. R. C IV. P.
12(b)(6) de novo. Shanbaum v. United States, 32 F.3d 180, 182 (5th Cir. 1994).
In reviewing a Rule 12(b)(6) motion, we accept all well-pleaded facts as true,
viewing them in the light most favorable to the plaintiff. In re Katrina Canal
Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007). “However, conclusory
allegations or legal conclusions masquerading as factual conclusions will not
suffice to prevent a motion to dismiss.” Fernandez-Montes v. Allied Pilots Ass’n,
987 F.2d 278, 284 (5th Cir. 1993). Generally, when ruling on a Rule 12(b)(6)
motion to dismiss, the district court may not look beyond the pleadings. Cinel
v. Connick, 15 F.3d 1338, 1341 (5th Cir. 1994). That court may, however, refer
to matters of public record, as well as to documents attached to the complaint.
Id. at 1343 n.6 (public records); Lovelace v. Software Spectrum, Inc., 78 F.3d
1015, 1017 (5th Cir. 1996) (documents attached to complaint). In addition,
“[d]ocuments that a defendant attaches to a motion to dismiss are considered
part of the pleadings if they are referred to in the plaintiff’s complaint and are
central to [the] claim.” Causey v. Sewell Cadillac-Chevrolet, 394 F.3d 285, 288
(5th Cir. 2004).
      In May 2004, while a pretrial detainee in the Tarrant County Jail (TCJ),
a fellow inmate assaulted Hicks while he was restrained in a restraint chair. In
his amended complaint, Hicks alleged that the defendants violated his Eighth
and Fourteenth Amendment rights by (1) failing to protect him from being
assaulted, (2) failing to train deputies on ways to protect pretrial detainees, (3)
failing to enact or follow TCJ policies on protecting restrained inmates from
assaults by fellow inmates and from other injuries, (4) failing to provide proper
medical treatment following the assault, and (5) placing him in a restraint chair.
      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.”

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                                No. 09-10426

Jones v. Bock, 549 U.S. 199, 216 (2007). Dismissal may be appropriate, however,
when, on its face the complaint establishes the inmate’s failure to exhaust. See
Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007).
      The TCJ provides a two-step procedure for presenting a grievance, viz., (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 the Inmate Grievance
Appeal Board within five days after receiving the written response to his
grievance. In his amended complaint, Hicks alleged that he filed grievances
complaining of the assault and attached copies of three grievances he filed with
the TCJ. The attached grievances arise from and mention the May assault while
restrained. Considering that § 1997e does not indicate how specific a prisoner’s
administrative grievance must be, see Johnson v. Johnson, 385 F.3d 503, 516
(5th Cir. 2004), and that under the Rule 12(b)(6) standard of review all
well-pleaded facts must be accepted as true, we accept Hicks’s allegation that he
filed a proper grievance for the assault.    Therefore, he is deemed to have
exhausted the first step of the two-step grievance procedure after the 60-day
time period for response expired. See Underwood v. Wilson, 151 F.3d 292, 295
(5th Cir. 1998) (overruled on other grounds).
      Even so, Hicks admittedly did not file appeals to the Inmate Grievance
Appeal Board prior to instituting his § 1983 suit. Hicks contends that the
exhaustion requirement was satisfied because TCJ officials never responded to
his grievances, but courts may no longer read a futility exception into the
exhaustion requirement. Booth v. Churner, 532 U.S. 731, 739-41 & n.6 (2001).
We have held that “available administrative remedies are exhausted when the
time limits for the prison’s response set forth in the prison Grievance
Procedures have expired,” Underwood, 151 F.3d at 295. In Underwood, however,
the inmate had “timely filed his grievances and appeals at each step of the . . .
process.” 151 F.3d at 295. Therefore, our holding in Underwood stands for the

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                                No. 09-10426

proposition that an inmate has exhausted administrative remedies when he
follows each step of the prison grievance process without ever having received
a response from the prison. Here, however, the TCJ grievance process explicitly
sets out two steps, and Hicks failed to comply with the second step.
Consequently, Hicks’s failure to pursue his grievance remedy to conclusion
constitutes a failure to exhaust his administrative remedies. See Wright v.
Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001).
      Hicks also contends that the district court erred when it failed to rule on
his objections to Deputy Lingle’s prejudicial statements and to Deputy Lingle’s
attempt to reserve the right to file a subsequent motion to dismiss on the basis
of qualified immunity. Having determined that Hicks failed to exhaust his
administrative remedies, the district court was not required to address these
issues. See § 1997e(a).
      Accordingly, the district court’s judgment is AFFIRMED. Hicks’s motions
to tax costs to the losing party and for the appointment of counsel are DENIED.




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