     Case: 18-31192       Document: 00515444950         Page: 1     Date Filed: 06/08/2020




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

                                                                            FILED
                                                                          June 8, 2020
                                       No. 18-31192                      Lyle W. Cayce
                                                                              Clerk

DONALD PHILLIPS,

               Plaintiff - Appellant

v.

C. GREEN, Officer; TRUDY PEARY, Officer; BRIAN BOUDREAUX, Nurse;
TRUDY REDDY,

               Defendants - Appellees




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:16-CV-490


Before BARKSDALE, HIGGINSON, and DUNCAN, Circuit Judges.
PER CURIAM:*
       At issue is defendants’ being awarded summary judgment because
Donald Phillips, a Louisiana Department of Public Safety and Corrections
(DOC) inmate being held in a jail, failed to exhaust the administrative
remedies available to him—as required by the Prison Litigation Reform Act,
42 U.S.C. § 1997e(a) (PLRA)—before pursuing an action under 42 U.S.C.



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 18-31192
§ 1983 or any other federal law. Because he did not properly exhaust the
available administrative remedies provided by the Iberville Parish Jail, his
claims fail. AFFIRMED.
                                       I.
      The material facts underlying this action are not disputed.          While
Phillips was a DOC inmate housed in the Iberville Parish Jail, he suffered a
stroke in November 2015 and was hospitalized. Phillips was discharged from
the hospital on 16 November and returned to the jail. On 10 January 2016,
approximately 55 days after his discharge, he filed a grievance form with the
jail alleging, inter alia, inadequate medical treatment.
      Phillips’ grievance form was rejected as “[f]iled more than 30 days after
event” and given back to him on 11 January. Phillips signed and dated the
rejection form.
      Phillips next filed the action underlying this appeal in federal court,
pursuant to 42 U.S.C. § 1983, also invoking supplemental jurisdiction,
pursuant to 28 U.S.C. § 1367, for a state-law negligence claim. Officers Peavy
and Green, Nurse Brian Boudreaux, and Trudy Reddy were named as
defendants. The court determined Officer Peavy was in fact Officer Trudy
Peary; “Trudy Reddy” never appeared, and the jail stated no such person
existed there.
      Officers Green and Peary moved for summary judgment based on
Phillips’ “fail[ure] to exhaust the available administrative remedies prior to
filing” his action, to which Phillips responded. After determining Phillips had
not exhausted his grievance, the court granted the officers’ summary-judgment
motion. And because Phillips had likewise failed to exhaust his claims as to
the other defendants, the court, sua sponte, dismissed Phillips’ remaining
claims as well.


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                                 No. 18-31192
                                         II.
      Phillips raises a number of contentions on appeal; primary among them
is the assertion that he, as a DOC inmate, even though being held in the jail,
should have had 90 days under Louisiana Administrative Code Title 22, § 325,
rather than 30 days under the jail’s administrative-remedy procedure, to file a
grievance. Because he failed to properly exhaust the administrative remedies
available to him, however, the majority of his contentions, including his
primary one, fail. Phillips’ alternative claim that the jail’s administrative-
remedy procedure was unavailable to him also fails.
      It goes without saying that a summary judgment is reviewed de novo.
E.g., Bargher v. White, 928 F.3d 439, 444 (5th Cir. 2019) (citation omitted).
And, under the similarly familiar Federal Rule of Civil Procedure 56 standard,
summary judgment is proper “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).
      Pursuant to the PLRA, “[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”. 42 U.S.C. § 1997e(a). As the Supreme Court has
made clear, “[t]here is no question that exhaustion is mandatory under the
PLRA and that unexhausted claims cannot be brought in court”, Jones v. Bock,
549 U.S. 199, 211 (2007) (citation omitted), and the PLRA’s “mandatory
language means a court may not excuse a failure to exhaust, even to take
[special] circumstances into account”, Ross v. Blake, 136 S. Ct. 1850, 1856–57
(2016) (citation omitted).
      In addressing exhaustion in Woodford v. Ngo, the Court confronted “the
question whether a prisoner can satisfy the [PLRA’s] exhaustion requirement
. . . by filing an untimely or otherwise procedurally defective administrative
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                                  No. 18-31192
grievance or appeal” and concluded, to the contrary, “that proper exhaustion of
administrative remedies is necessary”. 548 U.S. 81, 83–84 (2006) (citation
omitted). Expanding on this concept, it stated that “proper exhaustion . . .
means using all steps that [a correctional facility] holds out, and doing so
properly (so that the [correctional facility] addresses the issues on the merits)”.
Id. at 90 (emphasis in original) (internal quotation marks and citation
omitted). Importantly, to properly exhaust a claim, a prisoner must “compl[y]
with [the correctional facility’s] deadlines and other critical procedural rules”.
Id.
       These “applicable procedural rules” that a prisoner must properly
exhaust “are defined not by the PLRA, but by the [correctional facility]
grievance process itself”. Jones, 549 U.S. at 218 (citation omitted). And, our
court takes a “strict approach” to the PLRA’s exhaustion requirement, under
which “mere substantial compliance with administrative remedy procedures
does not satisfy exhaustion; instead, we have required prisoners to exhaust
available remedies properly”. Dillon v. Rogers, 596 F.3d 260, 268 (5th Cir.
2010) (internal quotation marks and citations omitted).
       Proper exhaustion is of crucial importance “because no adjudicative
system can function effectively without imposing some orderly structure on the
course of its proceedings”. Woodford, 548 U.S. at 90–91. “Requiring proper
exhaustion . . . gives prisoners an effective incentive to make full use of the
prison grievance process and accordingly provides prisons with a fair
opportunity to correct their own errors.” Id. at 94. This is essential to the
PLRA’s goals of not only “reduc[ing] the quantity and improv[ing] the quality
of prisoner suits” but also “afford[ing] corrections officials time and opportunity
to address complaints internally before allowing the initiation of a federal
case”. Porter v. Nussle, 534 U.S. 516, 524–25 (2002).


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                                  No. 18-31192
       The mandatory nature of exhaustion, however, “contains one significant
qualifier: the remedies must indeed be ‘available’ to the prisoner”. Ross, 136
S. Ct. at 1856. To be available, a grievance procedure must be “capable of use
to obtain some relief for the action complained of”.        Id. at 1859 (internal
quotation marks and citation omitted). By contrast, a grievance procedure is
unavailable when: (1) “it operates as a simple dead end—with officers unable
or consistently unwilling to provide any relief to aggrieved inmates”; (2) it is
“so opaque that it becomes, practically speaking, incapable of use” because “no
ordinary prisoner can discern or navigate it”; or (3) “prison administrators
thwart inmates from taking advantage of [the] grievance process through
machination, misrepresentation, or intimidation”. Id. at 1859–60 (citation
omitted).
                                        A.
       In this instance, pursuant to the jail’s administrative-remedy procedure,
an inmate’s “Grievance must be received by the Warden or designee within 30
days of the complained incident”.      Iberville Parish Jail Inmate Grievance
Procedure, Procedure Section, Part A (filing a grievance).         The procedure
further explains that “[a] Grievance may be rejected for the following reasons”,
including “[t]he grievance was received by the Warden or his designee more
than thirty (30) days after the event upon which [it] is based”. Id. Part B(1)(c)
(screening).
       As stated above, Phillips’ grievance was filed some 55 days after his
return from the hospital to the jail. Because Phillips failed to comply with the
jail’s procedural rule establishing the deadline for filing a grievance, he did not
properly exhaust his claims. See Jones, 549 U.S. at 218; Woodford, 548 U.S. at
90.




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                                  No. 18-31192
                                          B.
      Phillips claims DOC inmates are entitled to 90 days to file a grievance;
but, because he did not properly exhaust the administrative remedies provided
to him by the jail in which he was being held, his claim must be dismissed
unless the jail’s procedure was unavailable. See Ross, 136 S. Ct. at 1858.
Phillips contends the jail’s administrative remedies were unavailable to him
because: jail administrators provided no notice of the grievance procedure to
inmates, rendering them opaque; and jail administrators thwarted inmates’
ability to take advantage of the procedure by not providing notice, despite the
procedure’s requiring them to do so. Phillips further contends the lack of
financial compensation as an available remedy rendered the jail’s procedure a
dead end, rather than an avenue to relief, and thus rendered administrative
remedies unavailable.
                                          1.
      As stated, Phillips contends: he was not provided notice of the jail’s
administrative-remedy procedure; and, by failing to provide him notice, the
jail’s administrators thwarted his ability to take advantage of the procedure.
We agree with the district court’s concluding, to the contrary, that there is no
genuine dispute of material fact as to notice’s being given Phillips of the jail’s
administrative-remedy procedure.
      It goes without saying that “[m]ere conclusory allegations are not
competent summary judgment evidence, and they are therefore insufficient to
defeat or support a motion for summary judgment”. Topalian v. Ehrman, 954
F.2d 1125, 1131 (5th Cir. 1992) (citations omitted). Accordingly, “[s]ummary
judgment is appropriate . . . if the nonmovant fails to set forth specific facts, by
affidavits or otherwise, to show there is a genuine [dispute of material fact] for
trial”. Id. at 1132 (citation omitted).


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                                  No. 18-31192
      In moving for summary judgment, the officers asserted in their
supporting memorandum that the jail’s two-step administrative-remedy
procedure was provided and explained to every inmate.                As evidence
supporting this assertion, they provided the declaration of Warden Edwards,
which stated:    “The Iberville Parish Jail has an administrative remedy
procedure (‘ARP’) policy that is explained to all inmates at the facility and is
attached hereto”. Further, as stated, the officers attached to the memorandum
in support of their motion for summary judgment the referenced procedure,
which stated: “Upon assignment to, or incarceration in, the Iberville Parish
Jail, employees and inmates will be informed of the provisions of this procedure
in writing and by oral explanation, with an opportunity to ask questions and
receive oral answers”, and “[a] copy of this procedure will be available for
inmate use”. Iberville Parish Jail Inmate Grievance Procedure, Policy Section,
Part C (notification).
      In responding to the officers’ motion and memorandum, Phillips’ only
references to notice were his unsubstantiated assertions in his opposition to
summary judgment: “no notice had been provided of the 30 days restriction
that differed from the [DOC] regulation”; and “Defendants have not offered any
proof that Mr. Phillips was ever advised of their noncompliant rules”. We agree
with the district court’s conclusion that these unsubstantiated assertions do
not show the requisite genuine dispute of material fact as to Phillips’ being on
notice of the jail’s ARP. Re-stated, there is no genuine dispute of material fact
that: the procedure was available to Phillips; and prison administrators did
not thwart his accessing it by failing to give notice.
                                        2.
      Regarding Phillips’ contention that his seeking money damages, a
remedy for which the jail’s administrative-remedy procedure does not provide,
renders the procedure “an impediment to a tort action rather than a bonafide
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                                No. 18-31192
Administrative Remedy Procedure”, the Court has rejected the assertion that
an inmate seeking only money damages, like Phillips, need not exhaust a
grievance procedure that does not provide for money damages.          Booth v.
Churner, 532 U.S. 731, 741 (2001) (“Congress has mandated exhaustion clearly
enough, regardless of the relief offered through administrative procedures”.
(citation omitted)). Phillips’ contention that the unavailability of financial
compensation as a remedy rendered all remedies unavailable is, therefore,
foreclosed.
                                     III.
      For the foregoing reasons, the judgment is AFFIRMED.
Judge Higginson concurs only in the judgment.




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