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

                                                 FILED
                                                                         September 1, 2009
                                     No. 08-10237
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

BRADY HICKS, JR

                                                   Plaintiff-Appellant

v.

TARRANT COUNTY TEXAS

                                                   Defendant-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:06-CV-311


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
       Brady Hicks, Jr., Texas prisoner # 1254510, appeals the district court’s
final judgment granting Tarrant County, Texas’s motion to dismiss his 42 U.S.C.
§ 1983 civil rights complaint for failure to exhaust administrative remedies. He
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). For the following reasons, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-10237

      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, 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).          “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). The 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). Further,
“[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).
      On May 9, 2004, while a pretrial detainee in the Tarrant County Jail
(TCJ), Hicks was assaulted by a fellow inmate while 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 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

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required to specifically plead or demonstrate exhaustion in their complaints.”
Jones v. Bock, 549 U.S. 199, 216 (2007). Dismissal may be appropriate, however,
where the complaint on its face 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: (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 of receiving the written response to his grievance.
In his amended complaint, Hicks alleged to have 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 9th assault. 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 12(b)(6) standard of review all well-pleaded facts must be accepted as
true, we will accept Hicks's allegations 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 once the 60-day time period for response expired. See
Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998) (overruled on other
grounds).
      However, 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).
Though 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 the
inmate had “timely filed his grievances and appeals at each step of the . . .

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process.” 151 F.3d at 295. Our holding in Underwood, therefore, stands for the
proposition that an inmate has exhausted administrative remedies when he
follows each step of the prison grievance process but never receives a response
from the prison. Here, the TCJ grievance process explicitly sets out two steps,
and Hicks failed to comply with the second step. Therefore, 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).
      Accordingly, the district court’s judgment is AFFIRMED. Hicks’s motions
to expedite his appeal in accordance with 5 TH C IR. R. 27.5, to order the appellee
to preserve evidence, to tax costs to the losing party, and for the appointment of
counsel are DENIED.




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