     Case: 11-40666     Document: 00511960233         Page: 1     Date Filed: 08/17/2012




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

                                                                            FILED
                                                                          August 17, 2012
                                     No. 11-40666
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

CHRISTOPHER LINDSEY,

                                                  Plaintiff-Appellant

v.

M. STRIEDEL, Warden

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:10-CV-364


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Christopher Lindsey, Texas prisoner # 74054279, filed a 42 U.S.C. § 1983
complaint against the Coastal Bend Detention Center alleging unconstitutional
conditions of confinement. He thereafter amended his complaint to allege that
Sergeant White and Correctional Officer Freeze used excessive force against him
on November 14, 2010, and that Warden M. Striedel subjected him to excessive
force on November 17, 2010. After an evidentiary hearing, Lindsey voluntarily
dismissed all claims and all defendants, with the exception of his excessive-force

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-40666   Document: 00511960233      Page: 2   Date Filed: 08/17/2012

                                  No. 11-40666

claim against Striedel. Striedel moved to dismiss the remaining claim pursuant
to Federal Rule of Civil Procedure 12(b)(6) on the basis that Lindsey had failed
to exhaust administrative remedies. The district court granted the motion.
      Lindsey contends that he was unable to exhaust administrative remedies
because all of his property was removed from his prison cell after his altercation
with Striedel and was not returned until he was transferred to another facility;
Lindsey argues that he consequently lacked the ability and the materials to file
a grievance. He additionally alleges that he exhausted the only remedy that was
available to him by contacting various court employees and his court-appointed
counsel regarding his complaint. Lindsey also argues that his failure to exhaust
administrative remedies should be excused because his ability to file a grievance
was impeded by his inability to access an adequate law library.
      This court reviews de novo the grant of a motion to dismiss pursuant to
FED. R. CIV. P. 12(b)(6). Shanbaum v. United States, 32 F.3d 180, 182 (5th Cir.
1994). In reviewing a Rule 12(b)(6) motion, the “court accepts 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) (internal
quotation marks and citations omitted).
      Under 42 U.S.C. § 1997e(a), “[n]o action shall be brought with respect to
prison conditions under section 1983 of this title, or any other Federal law, by
a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” This court has taken
a strict approach to the exhaustion requirement. Dillon v. Rogers, 596 F.3d 260,
268 (5th Cir. 2010). Proper exhaustion is required, meaning that the inmate
must not only pursue all available avenues of relief but must also comply with
all administrative deadlines and procedural rules. Woodford v. Ngo, 548 U.S. 81,
90-91 (2006).
      Lindsey has failed to allege a valid basis to excuse his failure to exhaust
the applicable grievance procedure. The record belies Lindsey’s contention that

                                        2
   Case: 11-40666    Document: 00511960233      Page: 3   Date Filed: 08/17/2012

                                  No. 11-40666

he could not file a grievance because all of his property, including the materials
needed to file a grievance, was confiscated. The record establishes that, within
the time period for exhausting his remedies, Lindsey had the necessary property
and the ability to file pleadings in the district court that set forth the relevant
facts underlying his allegations. Lindsey does not identify any further materials
or resources that were needed specifically to file a grievance and does not explain
why he could not have filed a grievance using the same property used to file his
district court pleadings. To the extent that Lindsey suggests that he exhausted
his remedies by contacting court employees and his court-appointed counsel, his
claim is unavailing because these acts were procedurally defective and did not
meet his obligation to exhaust his claims in compliance with the applicable
grievance procedure. See Woodford, 548 U.S. at 83-84.
      Likewise, Lindsey has failed to show that his failure to exhaust remedies
should be excused because he was transferred to another facility. Lindsey does
not contend that there were any problems at the new facility that prevented him
from filing grievances regarding the incident at the Coastal Bend Detention
Center and has not alleged how his transfer otherwise impeded his ability to file
a grievance within the required time period. See Dillon, 596 F.3d at 267-68.
      He furthermore has not shown that he should be excused from exhaustion
because he was denied access to an adequate law library. He does not set forth
any specific legal materials that were withheld or articulate how a deficient law
library or lack of legal resources prevented him from filing a timely grievance.
Cf. Lewis v. Casey, 518 U.S. 343, 351-54 (1996) (holding that an inmate alleging
denial of access to the courts must show an actual injury).
      Accordingly, Lindsey did not properly exhaust his administrative remedies
and has not articulated any basis upon which his failure to exhaust should be
excused. The district court therefore did not err in dismissing his complaint.
See Woodford, 548 U.S. at 83-84.



                                        3
   Case: 11-40666    Document: 00511960233      Page: 4    Date Filed: 08/17/2012

                                  No. 11-40666

      Lindsey additionally raises a number of claims regarding the propriety of
the district court proceedings. He argues that he should have been permitted to
present this case to a jury and been provided relevant evidence. Lindsey further
contends that the magistrate judge (MJ) lacked authority to preside over the
proceedings and exhibited bias in her rulings. He also alleges that the district
court erroneously denied his request for the appointment of counsel.
      These claims are unavailing. Lindsey has not established that he properly
exhausted his administrative remedies and, therefore, he has not shown that the
merits of his claims should be presented to a jury; he likewise is not entitled to
have a jury determine whether he exhausted his claims. See Dillon, 596 F.3d at
272. To the extent that Lindsey argues that he was denied discovery before his
complaint was dismissed, his claim lacks merit. He has not demonstrated that
the production of additional materials would have established that he properly
exhausted his administrative remedies or that his failure to exhaust should be
excused. Furthermore, the record shows that Lindsey expressly consented to
having the MJ preside over the proceedings, and her adverse rulings do not
establish bias. See Liteky v. United States, 510 U.S. 540, 555 (1994). Lindsey
also has not shown that this case, which was not factually or legally complex,
involved exceptional circumstances that required the appointment of counsel.
See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
      Finally, Lindsey has moved for leave to file an out-of- time reply brief. We
greatly disfavor all extensions of time for filing reply briefs. 5TH CIR. R. 31.4.4.
Lindsey’s motion, which effectively repeats the substantive arguments that he
set forth in his primary brief, presents no compelling reason for us to permit the
untimely filing of his reply brief. Accordingly, the motion should be DENIED.
            AFFIRMED




                                         4
