     Case: 13-60574     Document: 00512894446        Page: 1    Date Filed: 01/08/2015




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                    No. 13-60574                      United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
DARNELL WILSON,                                                        January 8, 2015
                                                                        Lyle W. Cayce
              Plaintiff - Appellant                                          Clerk

v.

CHRISTOPHER B. EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT
OF CORRECTIONS; JAMES HOLMAN, Warden at Central Mississippi
Correctional Facility; MARGARETT BINGHAM, Superintendent at Central
Mississippi Correctional Facility; EDDIE CATES, Classification and Moving
Supervisor at Central Mississippi Correctional Facility,

              Defendants - Appellees




                  Appeal from the United States District Court
                    for the Southern District of Mississippi


Before JOLLY, HIGGINBOTHAM, and OWEN, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      Darnell Wilson, Mississippi prisoner # 159643, filed a complaint in the
district court alleging that the prison-official defendants had violated his 1
constitutional rights. The magistrate judge dismissed the complaint on the
ground that Wilson had failed to exhaust administrative remedies. In his
primary contention on appeal, Wilson argues that the prison’s failure to


      1Although Wilson appears to identify as a transgender woman, he generally uses male
pronouns in his filings. For the sake of consistency and clarity, we do the same.
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respond to his grievances excuses his non-exhaustion. We disagree because,
under both the particular grievance process at issue here and the settled law
of this circuit, a prison’s failure to respond at preliminary steps in its grievance
process does not relieve a prisoner of the duty to complete the remaining steps.
We therefore AFFIRM.
                                         I.
      Darnell Wilson is a prisoner who, at all times relevant to this appeal,
was housed at Central Mississippi Correctional Facility (“CMCF”).               On
September 20, 2010, Wilson filed a complaint in the district court. In the 63-
page complaint, he alleged a host of facts and incidents aimed at showing that
the defendants—the Commissioner of the Mississippi Department of
Corrections (“MDOC”), the warden of CMCF, and other employees of CMCF—
had violated his constitutional rights. Among these allegations were that his
uniform and linens had not been changed often enough, that he received a
haircut against his will that was administered with unsterilized scissors, and
that he was exposed to secondhand cigarette smoke emitted by his fellow
prisoners.   The complaint also alleged that Wilson had filed ten formal
grievances with the prison between July 23 and August 15, 2010, that he had
received no response to these grievances, and that the 90-day period within
which the prison could process a grievance was too long.
      The parties consented to proceed before the magistrate judge.            The
defendants then moved to dismiss on the ground that Wilson had not
exhausted administrative remedies, pointing to statements in Wilson’s
complaint and attaching several hundred pages’ worth of Wilson’s grievances
and related documents.       Wilson opposed the motion, asserting that the
exhaustion requirement should be deemed satisfied because of the prison’s
failure to respond to his grievances.


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      Construing the defendants’ motion as a motion for summary judgment,
the magistrate judge dismissed Wilson’s claims. The magistrate judge held
that Wilson’s complaint, together with the grievance records, demonstrated
that Wilson had failed to exhaust administrative remedies.         Further, the
magistrate judge found that Wilson had not alleged any ailment that might
excuse his failure to exhaust, and that, though the prison had failed to respond,
there is no “substantial compliance” exception to the exhaustion requirement
in this circuit. Finally, the magistrate judge held that Wilson’s arguments
about the length of MDOC’s grievance process were unavailing, as this court
had already approved of a grievance process similar to MDOC’s.           Wilson
appeals from this dismissal.
                                       II.
      “We review the grant of summary judgment de novo, applying the same
standards as the district court.” Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir.
2010) (internal quotation marks omitted). Those standards require the court
to grant summary judgment if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). In making this determination, the court
should “construe all facts and inferences in the light most favorable to the
nonmoving party.” Dillon, 596 F.3d at 266 (internal quotation marks omitted).
      Failure to exhaust is an affirmative defense, such that the defendants
have the burden of demonstrating that Wilson failed to exhaust administrative
remedies. Jones v. Bock, 549 U.S. 199, 216 (2007). At the summary-judgment
stage, this means that the defendants “must establish beyond peradventure all
of the essential elements of the defense of exhaustion to warrant summary
judgment in their favor.” Dillon, 596 F.3d at 266.




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                                             III.
                                             A.
       Under 42 U.S.C. § 1997e(a), “[n]o action shall be brought with respect to
prison conditions under section 1983 . . . by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are
available are exhausted.” To determine what remedies are “available” and
thus must be exhausted, we look to “the applicable procedural rules . . . defined
. . . by the prison grievance process itself.” Jones, 549 U.S. at 218 (citation
omitted) (internal quotation marks omitted). Because § 1997e “requires that
administrative remedies be exhausted before the filing of a § 1983 suit,” see
Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998), the relevant rules are those
that governed MDOC’s grievance process at the time prior to the filing of
Wilson’s suit. This circuit has taken a “strict” approach to § 1997e’s exhaustion
requirement, under which prisoners must not just substantially comply with
the prison’s grievance procedures, but instead must “exhaust available
remedies properly.” Dillon, 596 F.3d at 268 (emphasis added).
       MDOC’s grievance process is called the Administrative Remedy Program
(“the Program”). Prior to the filing of Wilson’s suit, the Program provided for
a three-step process that is summarized in Gates v. Cook, 376 F.3d 323 (5th
Cir. 2004) 2:


       2 The Program now appears to be a two-step process in which the only appeal is to the
Superintendent, Warden, or Community Corrections Director, who must render a final
decision within 45 days.       See MDOC Inmate Handbook, ch. VIII, available at
http://www.mdoc.state.ms.us/Inmate_Handbook/CHAPTER%20VIII.pdf. Inspection of the
record, however, shows that MDOC forms still referred to a “3rd step” at least as late as July
30, 2011. Thus, since Wilson filed his complaint on September 20, 2010, the three-step
version of the Program described in Gates appears to be the appropriate version to consider
here. Nevertheless, our analysis would not change if the new, two-step Program were already
in place, since the summary-judgment evidence shows that, before filing his complaint,
Wilson did not receive any second-step responses and did not file his first-step grievances in
time for MDOC’s time period for rendering a second-step response to have expired. See infra
at 7–8.
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      1) the inmate writes a letter to the Superintendent/Deputy
      Commissioner in care of the Legal Claims Adjudicator that is
      referred to a respondent by the Legal Claims Adjudicator; 2) if
      dissatisfied, the inmate may request relief from the
      Superintendent/Deputy Commissioner; 3) if dissatisfied, the
      inmate may appeal to the Commissioner in care of the ARP
      Administrator. The Commissioner will notify the inmate of his
      final decision within forty days of receiving the appeal. . . . . The
      ARP also provides that “[n]o more than ninety (90) days from
      initiation to completion of the process shall elapse, unless an
      extension has been granted” and that “expiration of response time
      limits without receipt of a written response shall entitle the
      offender to move on to the next step in the process.”
Id. at 330.   First-step letters are referred to as “ARPs.”       Finally, MDOC
employs a “backlogging” policy under which only one ARP is considered active
at a time, while the rest are maintained in “backlog.”
                                       B.
      Wilson presents two arguments on appeal.              First, he argues that
summary judgment was inappropriate because the Program’s grievance
process is “too lengthy,” “unconstitutional,” and “improper.” Second, Wilson
contends that his administrative remedies should be deemed exhausted
because MDOC failed timely to respond to his ARPs.
      The defendants respond that the fact of exhaustion “is not at issue”
because Wilson’s statements in his complaint conclusively demonstrate his
failure to exhaust. The defendants further argue that MDOC’s grievance
process is permissible because, in Wilson v. Boise, 252 F.3d 1356, 2001 U.S.
App. LEXIS 31249 (5th Cir. Mar. 30, 2001) (unpublished), this court approved
of a backlogging procedure similar to the one employed by MDOC.
      Wilson’s   first   argument—that      the   ARP’s     grievance   process   is
unconstitutional because it gives MDOC too much time to respond—is
meritless. Initially, Wilson cites no authority and provides no reasoning to
support his argument that the Constitution speaks to how long the prison’s
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grievance process may take.      Moreover, we have observed before that an
“inquir[y into] whether administrative procedures satisfy minimum acceptable
standards of fairness and effectiveness” is inappropriate in determining
whether a prisoner has exhausted administrative remedies.            Alexander v.
Tippah County, 351 F.3d 626, 630 (5th Cir. 2003) (per curiam) (internal
quotation marks omitted). Finally, to the extent that Wilson’s argument is
aimed at MDOC’s backlogging procedure, the defendants are correct that, in
Wilson, we recognized that backlogging is not unconstitutional, nor does it
abrogate § 1997e’s exhaustion requirement. Wilson, 2001 U.S. App. LEXIS
31249, at *9–10.
        We turn, then, to Wilson’s second argument—that the prison’s failure to
respond to his ARPs excused him from § 1997e’s exhaustion requirement. This
argument deserves closer scrutiny, because, under some circumstances, a
prison’s failure to respond to a prisoner’s grievances can result in the prisoner’s
administrative remedies being deemed exhausted. See Gates, 376 F.3d at 331;
Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998) abrogated on other
grounds by Jones, 549 U.S. at 215. Such circumstances, however, are absent
here.
        Section 1997e’s exhaustion requirement is satisfied only if the prisoner
“pursue[s] the grievance remedy to conclusion.” Wright v. Hollingsworth, 260
F.3d 357, 358 (5th Cir. 2001). This requirement does not fall by the wayside
in the event that the prison fails to respond to the prisoner’s grievance at some
preliminary step in the grievance process. Instead, the prison’s failure to
timely respond simply entitles the prisoner to move on to the next step in the
process. Thus, it is only if the prison fails to respond at the last step of the
grievance process that the prisoner becomes entitled to sue, because then there
is no next step (save filing a lawsuit) to which the prisoner can advance. This
is true both under the terms of the Program, see Gates, 376 F.3d at 330
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(“[E]xpiration of response time limits without receipt of a written response
shall entitle the offender to move on to the next step in the process.” (internal
quotation marks omitted)), and as a matter of the law of this circuit. See Taylor
v. Burns, 371 F. App’x 479, 481 (5th Cir. 2010) (unpublished) (“The expiration
of the time for the prison to respond . . . result[s] in exhaustion only if [the
prisoner] . . . timely pursue[s] his grievance at each step of the process.” (citing
Wright, 260 F.3d at 358)); see also, e.g., Ryan v. Phillips, 558 F. App’x 477, 478
(5th Cir. 2014) (unpublished); Mesquiti v. Gallegos, 427 F. App’x 377, 378 (5th
Cir. 2011) (unpublished); Hicks v. Garcia, 372 F. App’x 557, 558 (5th Cir. 2010)
(unpublished).
      Wilson, then, cannot maintain a suit founded on any claim that he
presented to the prison in only a step-one ARP, irrespective of whether the
prison responded within the time allotted for rendering step-one responses. To
the contrary, the prison’s failure to respond will result in exhaustion of
Wilson’s administrative remedies only if Wilson went on to file both a step-two
and a step-three appeal—that is, only if Wilson “pursue[d] the grievance
remedy to conclusion,” see Wright, 260 F.3d at 358—and the prison did not
make a timely response at that point. With these principles in mind, we turn
to whether there is a genuine issue of material fact that precludes summary
judgment.
      The defendants rely on Wilson’s complaint to demonstrate his failure to
exhaust. Wilson filed a form complaint, questions 6 and 7 of which deal with
exhaustion. Question 6 asked Wilson whether he “presented to the grievance
system the same facts and issues” alleged in the complaint. Wilson checked
“Yes.” Question 7.C then asked Wilson to “state everything [he] did to present
[his] grievance(s).” Wilson responded by alleging that he had submitted ten
ARPs and complaining about the 90-day time limit for completing the ARP
process. He also noted that he wrote a letter to the warden on August 24, 2010,
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in which he presented some of his grievances, including his lack of a clean
uniform and linens. Finally, Question 7.D asked Wilson to state what official
response his grievance received, as well as whether Wilson applied for
administrative review of the prison’s decision.     Wilson answered that he
received no initial responses from his ten ARP letters, and concluded by
lamenting that he could not get his “complaints resolved or at least addressed.”
      These statements in Wilson’s initial complaint are sufficient to
demonstrate that there is no genuine issue of material fact as to whether
Wilson exhausted his administrative remedies. See, e.g., Hicks v. Lingle, 370
F. App’x 497, 498 (5th Cir. 2010) (“Dismissal may be appropriate . . . when, on
its face, the complaint establishes the inmate’s failure to exhaust.” (citing
Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007)). As explained above,
Wilson’s remedies are not exhausted unless Wilson proceeded through all three
steps of the Program’s process, even if MDOC failed to respond at either of the
preliminary steps.    According to his complaint, however, Wilson did not
proceed through all three steps of the Program’s process; instead, he completed
only the first step of submitting ARPs, and then filed suit when those ARPs
were not responded to in a timely fashion.
      Moreover, even if we were to assume (contrary to the representations in
Wilson’s complaint) that Wilson did move on to steps two and three after the
prison failed to respond to his ARPs, the prison’s time limit for responding to
his step-three appeals could not have expired by the time he filed his
complaint. Wilson submitted his ARPs between July 23 and August 15, 2010.
Thus, because the outer limit for how long the process can take is 90 days, see
Gates, 376 F.3d at 330, the earliest date on which a third-step response could
have become due was 90 days after July 23; that is, October 21. Given that
Wilson filed his complaint in the district court on September 20, 2010, it is


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impossible for MDOC to have failed to timely respond to a third-step appeal
prior to the filing of the complaint.
      Thus, Wilson’s complaint makes clear that he neither received a final-
step response from the prison nor filed a final-step appeal and sued only after
the prison failed to timely respond at that point. Accordingly, there is no
genuine issue of material fact as to whether Wilson exhausted his
administrative remedies, and summary judgment was appropriate.
                                        IV.
      In this appeal, Wilson argues that he need not have exhausted
administrative remedies before suing because the prison’s grievance process
was unconstitutional and because the prison failed to respond to his
grievances. For the reasons above, we reject both arguments. The magistrate
judge’s dismissal is, therefore,
                                                                     AFFIRMED.




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