Case: 18-31183     Document: 00515538311         Page: 1      Date Filed: 08/24/2020




            United States Court of Appeals
                 for the Fifth Circuit                               United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                                                      August 24, 2020
                                 No. 18-31183                          Lyle W. Cayce
                                                                            Clerk

 Kenneth Donahue,

                                                           Plaintiff—Appellant,

                                     versus

 Alonzo Wilder, Doctor; Courtney Channey, Nurse;
 Jason Ard, Sheriff,

                                                       Defendants—Appellees.


                 Appeal from the United States District Court
                     for the Middle District of Louisiana
                           USDC No. 3:15-CV-499


 Before Smith, Willett, and Duncan, Circuit Judges.
 Per Curiam:*
        While incarcerated at the Livingston Parish Detention Center
 (LPDC), Kenneth Donahue made several visits to medical staff, Nurse




        *
          Pursuant to 5th Circuit Rule 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 opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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                                        No. 18-31183


 Courtney Chaney 1 and Physician Assistant 2 Alonzo Wilder, complaining of
 pain in his right foot. Ultimately, doctors had to amputate his toes. Donahue
 filed this suit, seeking damages, alleging state law negligence claims under
 Louisiana law, and alleging violations of his constitutional rights under 42
 U.S.C. § 1983. Donahue asserts that Chaney, Wilder, and LPDC’s Sheriff,
 Jason Ard, 3 failed to provide him with proper medical care. The district court
 granted Defendants’ Motion for Summary Judgment, dismissing Donahue’s
 Amended Complaint without prejudice, 4 because Donahue had failed to
 exhaust LPDC’s three-step administrative Grievance Procedure prior to
 filing suit, as required by both the Louisiana Prison Litigation Reform Act
 and the Federal Prison Litigation Reform Act. We affirm.
                                              I
         In October 2014, Donahue began to seek treatment at LPDC for pain
 in his right foot. Unfortunately, Donahue’s health issues worsened, and, in


         1
         While the case caption spells Defendant Courtney Chaney’s last name as
 “Channey,” she represents that it is, in fact, spelled “Chaney.”
         2
          While the case caption states that Defendant Alonzo Wilder is a doctor, Wilder
 represents that he is, in fact, a physician assistant.
         3
        Approximately two years after Donahue filed this suit against Chaney and Wilder,
 Donahue filed an amended complaint and added Sheriff Ard as a defendant.
         4
            We have jurisdiction over Donahue’s case. While a dismissal without prejudice,
 generally, is not appealable, in this instance, a dismissal without prejudice for failure to
 exhaust administrative remedies may effectively be final, as Donahue is now time-barred
 from attempting to exhaust his administrative remedies at LPDC. See Ruiz v. Brennan, 851
 F.3d 464, 468 (5th Cir. 2017) (reviewing, on appeal, claims that magistrate judge dismissed
 without prejudice for failure to exhaust administrative remedies); McMillan v. Dir., Tex.
 Dep’t of Crim. Just., Corr. Inst. Div., 540 F. App’x 358, 358 (5th Cir. 2013) (reviewing, on
 appeal, the dismissal without prejudice of § 1983 complaint for failure to exhaust
 administrative remedies). See also Dawson Farms, LLC v. Farm Serv. Agency, 504 F.3d 592,
 607 (5th Cir. 2007) (modifying district court’s judgment to dismiss without prejudice for
 failure to exhaust administrative remedies to a dismissal with prejudice since “exhaustion
 of administrative remedies [wa]s too late for the claims.”).




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                                        No. 18-31183


 December 2014, he was admitted to the University Health-Shreveport
 Hospital, where doctors performed surgery to amputate all the toes on his
 right foot.
         After Donahue was transferred from LPDC to Dixon Correctional
 Institute, Donahue decided to submit an administrative grievance to LPDC
 regarding his alleged improper medical treatment. LPDC has an Inmate
 Grievance Procedure that permits inmates to “request a grievance form in
 order to make his/her complaint known to a higher authority.” LPDC’s
 Grievance Procedure follows a three-step process. At Step One, the inmate
 files a written complaint, which is reviewed by the First Respondent; the
 First Respondent then issues a response to the inmate. 5 At Step Two, the
 inmate may request that the Warden review the First Respondent’s response
 if the inmate forwards his request to the Warden within five days of receiving
 the First Respondent’s response; the Warden then issues a response to the
 inmate. 6 Finally, at Step Three, the inmate may request that the Sheriff
 review the Warden’s response if the inmate submits an appeal to the Sheriff
 within five days of receiving the Warden’s response; the Sheriff renders a
 final decision for the inmate, at which point an inmate has completed
 LPDC’s Grievance Procedure. 7




         5
          Step One of LPDC’s Inmate Grievance Procedure provides: “Step One: The
 Warden will screen the grievance and if accepted, the form will be sent to the First
 Respondent. The inmate will be notified that the grievance is rejected or is being processed.
 The step one or First Respondent has fifteen (15) days to reply to the inmate.”
         6
           Step Two of LPDC’s Inmate Grievance Procedure provides: “If the inmate
 wishes to have the response of the First Respondent reviewed by the Warden, he/she must
 forward the request within five (5) days of the initial response. The Warden will review and
 render his response within twenty-five (25) days.”
         7
           Step Three of LPDC’s Inmate Grievance Procedure provides: “If the inmate
 wishes to have the Warden’s decision reviewed by the Sheriff, his/her appeal must be sent




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                                       No. 18-31183


         Donahue started off well. On February 23, 2015, Donahue, who was
 represented by counsel throughout the process, initiated Step One of
 LPDC’s Grievance Procedure by mailing a handwritten document to LPDC,
 entitled “THIS IS A REQUEST FOR ADMINISTRATIVE REMEDY –
 ADMINISTRATIVE PROCEDURE REMEDY.” As First Respondent,
 Lieutenant Thomas Martin received, reviewed, and rejected Donahue’s
 complaint; the First Respondent faxed Donahue the rejection on March 18,
 2015, which Donahue signed that day. Also on March 18, 2015, Donahue
 began Step Two of LPDC’s Grievance Procedure by mailing a “Request for
 Warden’s Review,” which LPDC’s Warden, Perry Rushing, received on
 March 24, 2015. The Warden reviewed Donahue’s complaint and faxed
 Donahue a written response on April 13, 2015. But, this time, Donahue did
 not—and, in fact, refused to—sign the Warden’s response. Of significance,
 Donahue never submitted a “Request for Sheriff’s Review,” as required by
 the third and final step of LPDC’s Grievance Procedure. Instead, on April
 13, 2015, Donahue wrote a handwritten document, which he addressed and
 mailed to the First Respondent and the Warden on April 14, asking for their
 review of his complaint.
         On July 31, 2015, Donahue, represented by counsel, filed suit against
 Chaney and Wilder, seeking monetary damages and raising state law
 negligence claims under Louisiana law and violations of 42 U.S.C. § 1983,
 alleging that they failed to provide Donahue adequate medical treatment
 while he was incarcerated at LPDC. On July 10, 2017, Donahue filed an
 Amended Complaint that added Sheriff Ard as a defendant and asserted the




 within five (5) days. The Sheriff or his designee will make the final decision within forty
 (40) days of his receipt of the grievance.”




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                                       No. 18-31183


 same claims. Defendants filed Motions for Summary Judgment to dismiss
 Donahue’s Amended Complaint.
         On October 10, 2018, the district court granted the Defendants’
 Motions for Summary Judgment, dismissing all claims without prejudice,
 because Donahue had failed to exhaust LPDC’s Inmate Grievance
 Procedure, as required under both the Louisiana Prison Litigation Reform
 Act (Louisiana PLRA), La. Stat. Ann. § 15:1184(A)(2), and the Federal
 Prison Litigation Reform Act (Federal PLRA), 42 U.S.C. § 1997e(a).
 Donahue now appeals. 8
         At issue on appeal is whether Donahue’s April 13, 2015 letter to the
 First Respondent and the Warden constituted an appeal to the Sheriff to
 satisfy Step Three of LPDC’s Grievance Procedure and thereby exhausted
 Donahue’s available administrative remedies.
                                             II
         We review summary judgment de novo. Gowesky v. Singing River Hosp.
 Sys., 321 F.3d 503, 507 (5th Cir. 2003). Summary judgment is appropriate
 only if “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). We review
 the dismissal of an inmate’s 42 U.S.C. § 1983 complaint for failure to exhaust
 administrative remedies, as required by § 1997e(a), de novo. Powe v. Ennis,
 177 F.3d 393, 394 (5th Cir. 1999).
         Failure to exhaust is an affirmative defense, for which the defendant
 has the burden of proof. Jones v. Bock, 549 U.S. 199, 216 (2007). “At the
 summary-judgment stage, . . . defendants ‘must establish beyond


         8
            Donahue also applied for leave to proceed in forma pauperis on appeal, which the
 district court denied on the grounds that Donahue’s appeal was not taken in good faith. We
 need not address this issue since Donahue has not raised it on appeal.




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                                   No. 18-31183


 peradventure all of the essential elements of the defense of exhaustion to
 warrant summary judgment in their favor.’” Wilson v. Epps, 776 F.3d 296,
 299 (5th Cir. 2015) (quoting Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir.
 2010)).
                                       III
        On appeal, Donahue argues that LPDC’s administrative remedies
 were unavailable to him, or, alternatively, that he exhausted administrative
 remedies at Step Three because his April 13, 2015 letter to the First
 Respondent and the Warden was timely and written to advance his grievance.
 Although Donahue raised § 1983 claims and state-law claims against the
 Defendants, the requirements under the Louisiana PLRA and Federal PLRA
 are substantively similar, so we consider both together.
        The Louisiana PLRA provides that “[n]o prisoner suit shall assert a
 claim under state law until such administrative remedies as are available are
 exhausted.” La. Stat. Ann. § 15:1184(A)(2). Under Louisiana law, if an
 inmate files suit “prior to exhaustion of administrative remedies, the district
 court lacks jurisdiction over the matter, and the suit shall be dismissed
 without prejudice.” Boudreaux v. La. Dep’t of Pub. Safety & Corr., 222 So.3d
 63, 66 (La. Ct. App. 2017).
        Similarly, the Federal PLRA provides that “[n]o action shall be
 brought with respect to prison conditions under section 1983 . . . by a prisoner
 . . . until such administrative remedies as are available are exhausted.”
 § 1997e(a). In Woodford v. Ngo, the Supreme Court held that exhaustion is
 “mandatory” under the PLRA. 548 U.S. 81, 85 (2006). While an inmate
 must properly exhaust administrative remedies before filing suit, the text of
 § 1997e(a) possesses “one significant qualifier” to the mandatory exhaustion
 requirement: the administrative remedies must be “available” to the
 prisoner in order to be exhausted. Ross v. Blake, 136 S. Ct. 1850, 1856 (2016).




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                                  No. 18-31183


 Three types of circumstances exist in which an administrative remedy may
 be deemed unavailable to a prisoner: (1) when the administrative remedy
 “operates as a simple dead end—with officers unable or consistently
 unwilling to provide any relief to aggrieved inmates”; (2) where “some
 mechanism exists to provide relief, but no ordinary prisoner can discern or
 navigate it”; and (3) “when prison administrators thwart inmates from
 taking    advantage   of   a   grievance   process    through    machination,
 misrepresentation, or intimidation.” Id. at 1859–60. If an administrative
 remedy is available to a prisoner, we take a “strict approach” to § 1997e(a)’s
 mandatory exhaustion requirement, “under which prisoners must not just
 substantially comply with the prison’s grievance procedures, but instead
 must ‘exhaust available remedies properly.’” Wilson v. Epps, 776 F.3d 296,
 299–300 (5th Cir. 2015) (quoting Dillon v. Rogers, 596 F.3d 260, 268 (2010)).
          We find no evidence in the record to support Donahue’s arguments
 on appeal that LPDC’s administrative remedies should be deemed
 “unavailable” so as to excuse Donahue from the Federal PLRA’s mandatory
 exhaustion requirement.
          First, Donahue argues that LPDC’s administrative procedure
 “operates as a simple dead end—with officers unable or unwilling to provide
 any relief to aggrieved inmates” because the First Respondent refused to
 provide Donahue’s April 13, 2015 letter to the Sheriff for review under Step
 Three. Donahue provides no evidence that the LPDC administrative
 procedure was a dead end; he just conclusorily asserts it. To satisfy the “dead
 end” exception, Donahue must provide evidence that LPDC’s
 administrators are “unable or consistently unwilling to provide any relief.”
 Ross, 136 S. Ct. at 1859. LPDC’s Grievance Procedure could have provided
 Donahue with relief, had he completed all three steps of LPDC’s Grievance
 Procedure. Plus, LPDC’s First Respondent and Warden did take action by
 responding to Donahue’s Step One and Step Two complaints. Since there is



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                                    No. 18-31183


 no support to substantiate this basis for unavailability of administrative
 remedies, we reject his claim.
          Next, Donahue argues that his administrative remedies were
 unavailable because LPDC’s administrative scheme was “essentially
 unknowable” such that “no ordinary prisoner can discern or navigate [the
 administrative procedure]” because neither the Sheriff nor the First
 Respondent followed LPDC’s written policies. But Donahue’s argument is
 misguided. This second type of unavailability relates to whether an “ordinary
 prisoner can make sense of what [the administrative remedy] demands.”
 Ross, 136 S. Ct. at 1859. At Step Two, the Inmate Receipt section of the
 Warden’s decision clearly and unambiguously instructed Donahue to “sign
 the following Request for Sheriff’s Review and send it to the Sheriff” within
 five days of receipt if he sought additional review, as required under Step
 Three of LPDC’s Grievance Procedure. An ordinary prisoner could make
 sense of what the grievance procedure required: signing the request and
 sending it to the sheriff. Moreover, Donahue demonstrated past compliance
 with LPDC’s Grievance Procedure: he signed the First Respondent’s
 response to proceed with Step Two. This, coupled with the fact that
 Donahue was represented by counsel throughout the grievance process,
 confirms that Donahue had the capability to successfully navigate LPDC’s
 administrative remedy. We find no evidence in the record to support his
 claim that LPDC’s administrative remedies were unavailable because they
 were “unknowable.”
          Finally, Donahue argues that LPDC’s administrative remedy was
 unavailable because LPDC’s administrators were “thwart[ing him] from
 taking    advantage   of   a     grievance   process   through   machination,
 misrepresentation, or intimidation,” because the First Respondent added
 technicalities that were not part of LPDC’s written policies. But, as noted
 above, the alleged technicalities—the request to sign the Warden’s response



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                                   No. 18-31183


 to indicate receipt of the Warden’s decision and the failure to forward
 Donahue’s April 13, 2015 letter to the Sheriff—cannot be said to constitute
 machination, misrepresentation, or intimidation sufficient to render LPDC’s
 Grievance Procedure unavailable. The request to sign the Warden’s response
 was a legitimate request to prove that Donahue had received the Warden’s
 response. The failure of the First Respondent and the Warden to forward
 Donahue’s April 13, 2015 letter to the Sheriff cannot be said to constitute
 machination, misrepresentation, or intimidation because there was no
 request in the letter to forward the letter to the Sheriff. We find no support
 in the record to establish this claim.
        Because LPDC’s Grievance Procedures were, in fact, available to
 Donahue, Donahue failed to properly exhaust his administrative remedies as
 required by § 1997e(a). Donahue argues that he exhausted the LPDC’s
 Grievance Procedure at Step Three because his April 13, 2015 letter, which
 he mailed to the First Respondent and the Warden, was timely—within the
 five-day period required by Step Three of the LPDC’s Grievance
 Procedure—and written to advance his grievance from Step Two to Step
 Three. But Donahue did not properly follow LPDC’s Grievance Procedure:
 Donahue’s letter was not addressed to the Sheriff and did not request the
 Sheriff to review the decision. Indeed, Donohue admitted in his deposition
 that he failed to complete Step Three by failing to request reviews of the
 Warden’s decision by the Sheriff. Donahue’s refusal to sign the Warden’s
 response and appeal the Warden’s decision to the Sheriff constituted an
 abandonment of the administrative remedies available to him. By doing so,
 Donahue failed to exhaust his administrative remedies properly. Donahue
 neither initiated nor completed the third and final step of LPDC’s Grievance
 Procedure. Therefore, the district court properly found that Donahue failed
 to exhaust his administrative remedies.




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                                    No. 18-31183


                                        IV
         Donahue successfully completed Step One of LPDC’s Grievance
  Procedure and began Step Two. But Donahue did not properly complete
  Step Two, and he never initiated Step Three. Such shortcomings constitute
  a failure to exhaust available administrative remedies.
         Failure to exhaust “usually results in a dismissal without prejudice,”
  but with prejudice dismissal is warranted when it is “too late” for the plaintiff
  to exhaust. Dawson, 504 F.3d at 607. Here, Donahue’s five-day window to
  seek the Sheriff’s review of the Warden’s decision has indisputably come and
  gone. Accordingly, the summary judgment is AFFIRMED, but we
  MODIFY that judgment to dismiss the § 1983 claims with prejudice.
  Donahue’s state-law claims were properly dismissed without prejudice. See
  La. Stat. Ann. § 15:1184(A)(2).




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