     Case: 14-30141      Document: 00512785288         Page: 1    Date Filed: 09/29/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-30141                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                        September 29, 2014
DURWIN ABBOTT,                                                             Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff – Appellant
v.

CAPTAIN PERCY BABIN; MASTER SERGEANT TYRONE KILBOURNE;
WARDEN STEVE RADAR,

                                                 Defendants – Appellees




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                               USDC 3:12-CV-631


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Durwin Abbott is an inmate at Dixon Correctional Institute in Jackson,
Louisiana. He brought this action under 42 U.S.C. § 1983 against Captain
Percy Babin, Master Sergeant Tyrone Kilbourne, and Warden Steve Radar for
use of excessive force against him.           The district court granted summary




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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judgment to the defendants, concluding that Abbott failed to exhaust his
administrative remedies. We AFFIRM.
              FACTUAL AND PROCEDURAL BACKGROUND
      Abbott alleges that on November 11, 2011, two prison guards rousted
him from his bunk, ordered him to gather his belongings, and escorted him
from his cell to a separate unit he refers to as “the bullpen.” Once there, Babin
and Kilbourne harassed Abbott about previous Administrative Remedy
Procedure complaints (“ARP’s”) he had filed against them. Abbott alleges
Babin punched him in the face and Kilbourne placed him in a chokehold. He
was eventually placed in an Administrative Segregation unit, where he was
allegedly punched again. Abbott alleges that much of this beating occurred
after he was placed in handcuffs. The beating caused him to fall to the ground,
injuring his shoulder, and he alleges that the handcuffs were so tight that they
caused nerve damage in one of his wrists. Abbott claims that Babin and
Kilbourne orchestrated this episode to retaliate against him for making the
previous complaints.
      On November 19, 2011, and again on January 10, 2012, Abbott filed an
ARP against Babin, Kilbourne, and Major Douglas Stroughter, who is not a
party to this appeal. The ARP alleged “retaliation, malfeasance, harassment,
unnecessary force, corporal punishment, and excessive force,” discussed the
events of November 11, and sought to place this particular incident within the
broader context of his interactions with Babin and Kilbourne. For example,
Abbott complains that Babin’s “constant[] harassment and hate for [him] is
clearly personal” and that Babin and Kilbourne are “clearly out of control.”
These allegations are interspersed with factual allegations about the events of
November 11 and citations to other ARP’s and complaints Abbott has filed or
made on other occasions with various other parties, including the Federal
Bureau of Investigation and the prison chaplain.
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      The Louisiana Department of Public Safety and Corrections (DOC)
rejected Abbott’s ARP on January 18, 2012, because the ARP contained
multiple issues. On January 24, 2012, Abbott resubmitted the same complaint,
stating that the prior rejection was part of a cover-up regarding his troubled
relationship with Babin and Kilbourne.        On May 21, having received no
response to his resubmitted complaint, he wrote directly to the Secretary of the
DOC, James LeBlanc, seeking a final response. The DOC sent a “SECOND
STEP RESPONSE FORM,” which stated that his ARP had been properly
rejected at the screening stage because it contained multiple issues.         On
October 5, 2012, Abbott filed this suit seeking damages pursuant to 42 U.S.C.
§ 1983 for injuries allegedly suffered on November 11. The defendants moved
for summary judgment, arguing that Abbott failed to exhaust his
administrative remedies as required by 42 U.S.C. §1997e(a). The district court
concluded that Abbott’s failure to cure the deficiencies that resulted in the
rejection of his ARP represented a failure to properly exhaust his
administrative remedies for the purposes of Section 1997e, granted summary
judgment to the defendants, and dismissed Abbott’s lawsuit without prejudice.
                                 DISCUSSION
      We review a grant of summary judgment de novo, applying the same
standards as the district court. Ballard v. Devon Energy Prod. Co., 678 F.3d
360, 365 (5th Cir. 2012). Our review of a dismissal of a prisoner’s Section 1983
action for failure to exhaust administrative remedies is likewise de novo.
Richardson v. Spurlock, 260 F.3d 495, 499 (5th Cir. 2001). Summary judgment
is proper “if the movant shows there is no genuine dispute as to any material
fact.” FED. R. CIV. P. 56(a). A genuine dispute of material fact exists only if “a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).


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       “No 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.” 42 U.S.C. § 1997e(a). Under this
provision of the Prison Litigation Reform Act (“PLRA”), Pub. L. 104-134, 110
Stat. 1321, exhaustion is a mandatory prerequisite to the filing of a suit by a
prisoner with respect to prison conditions. Porter v. Nussle, 534 U.S. 516, 524
(2002).    A properly exhausted claim is one which has “complete[d] the
administrative review process in accordance with the applicable procedural
rules.” Woodford v. Ngo, 548 U.S. 81, 88 (2006). Those rules “are defined not
by the PLRA, but by the prison grievance process itself.” Jones v. Bock, 549
U.S. 199, 218 (2007).        When defendants seek to avail themselves of the
affirmative defense of failure to exhaust, they bear the burden of showing that
administrative remedies were not exhausted. Id. at 216.
       The Louisiana Administrative Code provides to all prisoners in the
Louisiana prison system a procedure for filing ARP’s. See LA. ADMIN. CODE
TIT. 22, PT. I,   §325 (2013). The ARP is a three-step process: “Screening,” “First
Step,” and “Second Step.” Id. at J. Initially, an ARP Screening Officer reviews
all requests and may reject a request only if it meets one of ten enumerated
restrictions. Id. at I. Relevant here, a request is rejected if “[t]he offender has
requested a remedy for more than one incident (a multiple complaint).” Id. at
I(g). A rejected ARP is returned to the prisoner with notice of its rejection. Id.
at I(a)(ii). The grievance process does not commence until the ARP is accepted.
See id. at I(b).       After an ARP’s acceptance, the “First Step” involves an
investigation by prison staff; the results of the investigation and any proposed
remedies are presented in a “First Step Response” form. Id. at J(1)(a). If the
prisoner is unsatisfied with the response, he or she may appeal to the Secretary
of the DOC, who provides his conclusion, or that of his designee, on the “Second
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Step Response” form. Id. at J(1)(b). If the prisoner is still unsatisfied, suit may
be filed in district court. Id. at J(1)(b)(iv).
      Here, the ARP screening officer rejected Abbott’s ARP because it
contained references to more than the single incident upon which he sought
relief. See id. at I(g). After his ARP was rejected, Abbott resubmitted the exact
complaint already rejected. Because of the failure to submit a procedurally-
acceptable ARP complaint, the merits of his allegations were never considered
under the First Step of the ARP. Consequently, Abbott failed properly to
exhaust his administrative remedies. Woodford, 548 U.S. at 93; Jones, 549
U.S. at 218. Abbott urges that he did, in fact, proceed to Step Two, and submits
as evidence a response from the Secretary which was on the Second Step
Response form. Though the Second Step Response form was used, the response
itself contained no discussion of the facts or merits of Abbott’s complaints, as
would usually occur at Step Two of an accepted ARP. We are not persuaded
that the Secretary’s use of the Step Two Response form absolves Abbott of his
responsibility to file a procedurally-proper ARP.
      After concluding that summary judgment was proper, the district court
dismissed Abbott’s claim without prejudice. We agree that it was proper to
dismiss, and to do so without prejudice.
      Though we affirm, nothing in this opinion precludes Abbott from
attempting to exhaust administrative remedies again. He does need to comply
with the requirement of presenting a claim only as to one incident. The specific
claim he apparently has been intending to bring concerns the injuries he says
he sustained on November 11, 2011. If that is his primary claim, he needs to
limit his ARP only to that incident. Should Abbott wish to pursue these
remedies, we advise that he act immediately. We find no clarity in the statute
or applicable regulation as to whether Abbott’s initial filing of a grievance
within 90 days of the November 2011 incident, though improper in form,
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permits later efforts to file a proper claim. We also note that compliance with
the 90-day filing requirement “may be waived when circumstances warrant.”
LA. ADMIN. CODE TIT. 22, PT. I, § 325 G(1). If Abbott does again file, we express
no opinion on how such a filing affects the remedies available to him under this
regulation.
      Because no party argues that Abbott’s October 5, 2012 filing of this suit
was outside the applicable statutory period of prescription for a Section 1983
suit, there has been a tolling of the prescriptive period “during the pendency of
this action and any additional state administrative proceedings” that may take
place. Wright v. Hollingsworth, 260 F.3d 357, 359 (5th Cir. 2001). Those
administrative proceedings will continue to toll the period for filing a new
Section 1983 suit, but he should file his ARP within 30 days of the issuance of
the mandate of this court.
      Abbott failed to follow the procedures for filing his ARP, and the
defendants have carried their burden of showing that Abbott failed to exhaust
his claim. See Jones, 549 U.S. at 216; 42 U.S.C. 1997e(a). Thus, the district
court did not err by granting summary judgment to the defendants and
dismissing his Section 1983 claim without prejudice.
      AFFIRMED.




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