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

                                                  FILED
                                                                            June 23, 2009

                                       No. 08-40690                    Charles R. Fulbruge III
                                                                               Clerk

ALEXY A ROSA
                                                   Plaintiff-Appellee
v.

JOHN DOE LITTLES; MATTHEW PHILLIPS; LLOYD MORVANT

                                                   Defendants-Appellants




                    Appeal from the United States District Court
                          for the Eastern District of Texas
                               USDC No. 9:06-CV-252


Before BARKSDALE, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:*
           For this interlocutory appeal, at issue is whether Alexy A. Rosa’s failure
to pursue both steps of the Texas Department of Criminal Justice’s (TDCJ) two-
step grievance process is fatal, pursuant to the Prison Litigation Reform Act
(PLRA), 42 U.S.C. § 1997e, to his excessive-force action. Three TDCJ employees
challenge summary judgment’s being denied on their failure-to-exhaust claim,
asserted pursuant to the PLRA, 42 U.S.C. § 1997e, in response to Rosa’s action.
Rosa is proceeding pro se. AFFIRMED.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-40690


                                        I.
      On 18 December 2004, Rosa, a TDCJ inmate, filed a step-one grievance
claiming that, two days earlier, excessive force had been used against him by
three TDCJ correctional officers (Defendants) and asked that Defendants be
removed from employment at TDCJ. The grievance was filed pursuant to TDCJ’s
two-step process.
      In January 2005, Rosa received a response to his step-one grievance from
Unit Administration. The response stated:
      Due to the nature of your complaint, a copy of this grievance was
      forwarded to the Office of Inspector General. Following their review,
      OIG Case #IF.CC.05002042GL was opened by them. All further
      correspondence concerning this matter should be forwarded to the
      OIG citing the above-mentioned case number.
The response did not advise Rosa not to file a step-two grievance. It is
undisputed that Rosa never filed that grievance.
      Shortly after Rosa received the response, and consistent with it, the Office
of Inspector General (OIG) conducted an investigation and prepared a report.
The OIG found that one of the Defendants “grabbed Rosa by his clothing while
pushing him into the wall, kneed him twice in the groin, and slammed him onto
a table, and then slammed him to the floor while pressing his knee against
Rosa’s jaw”. That Defendant was later convicted of criminal charges based on
his use of force against Rosa and other inmates and, needless to say, is no longer
employed by TDCJ. Another of the Defendants was disciplined for failure to
report a use of force. The third Defendant is no longer employed by TDCJ.
      On 3 November 2006, proceeding pro se, Rosa filed this action against
Defendants pursuant to 42 U.S.C. § 1983, claiming violation of his constitutional


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rights and seeking punitive damages, medical expenses, injunctive relief, and
costs. Rosa’s motion to proceed in forma pauperis was granted; for appointment
of counsel, denied.
        In November 2007, Defendants moved for summary judgment claiming,
inter alia, that Rosa failed to exhaust his administrative remedies by not filing
a step-two grievance. Rosa responded that filing that grievance was unnecessary
because his step-one grievance resulted in a favorable outcome (OIG
investigation).
        The magistrate judge’s report and recommendation agreed with Rosa.
Relying on Booth v. Churner, 532 U.S. 731 (2001), the magistrate judge reasoned
that, because initiation of an investigation was all the relief “available” to Rosa
when he filed a step-one grievance, no purpose would be served by requiring
Rosa to file a step-two grievance. The magistrate judge also stated:
        This is not a holding that the grievance procedure was “futile” or
        that exhaustion is excused because Rosa would have sought relief
        that was unavailable; the relief was not “unavailable” but on the
        contrary had already been accorded to him through the initiation of
        an OIG investigation.
        Accordingly, the magistrate judge recommended summary judgment’s
being    denied.   Defendants   filed   timely   objections   to   the   report   and
recommendation, contending that exhaustion of both step one and step two was
strict and mandatory pursuant to the PLRA, Supreme Court decisions, and this
court’s unpublished opinions.
        On 6 February 2008, the district court overruled Defendants’ objections
and adopted the report and recommendation. Relying on other circuits’ decisions
holding that prisoners need not appeal a favorable resolution of their grievance


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to satisfy the exhaustion requirement, e.g., Thornton v. Snyder, 428 F.3d 690,
696-97 (7th Cir. 2005), the district court ruled that Rosa “had no reason to
appeal to Step Two”.
      On 25 February 2008, pursuant to 28 U.S.C. § 1292(b), Defendants moved
the district court to certify for interlocutory appeal the exhaustion-of-
administrative-remedies issue. The district court did so in April 2008, and our
court, in July 2008, granted permission to pursue this interlocutory appeal.
                                        II.
      As noted, Rosa proceeds pro se, his appointment-of-counsel motion having
been denied by this court in January 2009. In November 2008, Rosa moved to
submit documents for review, including the Spears hearing record and
documents pertaining to TDCJ grievance procedure. In December 2008, Rosa
moved for submission of the TDCJ Offender Grievance Operations Manual
(Grievance Manual). Having been notified the court would take no action on his
motions, Rosa moved for reconsideration. Rosa’s motions are DENIED because
the documents with which he seeks to supplement the record on appeal are
already in it.
      A summary-judgment ruling is reviewed de novo, applying the same legal
standards as the district court. E.g., Mayo v. Hartford Life Ins. Co., 354 F.3d 400,
403 (5th Cir. 2004). That standard of review applies in this instance for the
denial of dismissal for failure to exhaust. Johnson v. Johnson, 385 F.3d 503, 515
(5th Cir. 2004) (citing Richardson v. Spurlock, 260 F.3d 495, 499 (5th Cir. 2001)).
Summary judgment is proper when “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to



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any material fact and that the movant is entitled to judgment as a matter of
law”. F ED. R. C IV. P. 56(c).
      The PLRA, enacted in 1995 to reduce prisoner litigation in federal courts,
provides:
      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) (emphasis added). “[A]n inmate must exhaust irrespective
of the forms of relief sought and offered through administrative avenues”. Booth,
532 U.S. at 741 n.6. Booth held the PLRA requires administrative exhaustion
although the grievance process does not permit money damages and a prisoner
seeks only money damages, as long as the grievance tribunal has the authority
to take some responsive action. Id. at 741. Along that line, the Court stressed
that futility or other exceptions will not be read “into statutory exhaustion
requirements where Congress has provided otherwise”. Id. at 741 n.6.
Accordingly, under the PLRA, “[e]xhaustion is no longer left to the discretion of
the district court, but is mandatory”. Woodford v. Ngo, 548 U.S. 81, 85 (2006).
      Defendants claim that, in denying summary judgment, the district court
misconstrued the PLRA and decisions interpreting it. Although the district
court, by adopting the magistrate judge’s recommendation, stated that its ruling
was not based on the fact that Rosa’s filing a step-two grievance would have been
futile, Defendants contend the ruling was nonetheless based on the finding of
futility and, accordingly, is in violation of Booth, 532 U.S. at 741 n.6. Defendants
maintain that, instead of enforcing mandatory exhaustion requirements, the
district court exercised its discretion, in violation of the PLRA. To support their

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failure-to-exhaust claim, Defendants rely, inter alia, on this court’s unpublished
decisions holding that an inmate must file both step-one and step-two grievances
to properly exhaust.
      Further, Defendants claim Rosa received all the relief he requested in his
step-one grievance: two Defendants are no longer employed by TDCJ, one of
them was convicted of criminal charges, and the third Defendant was
disciplined. Therefore, Defendants claim, Rosa has no claims to litigate.
      Accordingly, regarding Rosa’s claim for money damages in this action,
Defendants reason that, had Rosa been truly satisfied with the favorable
resolution of his step-one grievance, there would have been no need to pursue
this action for such damages. Defendants claim that, because Rosa, not being
completely satisfied with the result of his step-one grievance, did not file a step-
two grievance, he failed to properly exhaust his administrative remedies.
       Rosa, relying on decisions from other circuits holding there is no
exhaustion obligation where no further relief is available, asserts: there was no
need to file a step-two grievance where an OIG investigation commenced as a
result of his step-one grievance; and that was all the relief he could have
obtained through TDCJ’s grievance process. Further, because TDCJ’s Grievance
Manual expressly prohibits inmates’ requesting monetary damages for excessive
use of force or requesting a disciplinary action against staff, Rosa contends
seeking money damages through TDCJ’s grievance process was not “available”
to him. Therefore, because TDCJ’s procedure could no longer grant him any
further relief at step two, Rosa claims he properly exhausted his administrative
remedies.



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      Again, the PLRA provides:
      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) (emphasis added). As used in the PLRA, the modifier
“available” requires “the possibility of some relief for the action complained of”.
Booth, 532 U.S. at 738. The word “exhausted” refers to “procedural means, not
the particular relief ordered”. Id. at 739 (“It makes no sense to demand that
someone exhaust ‘such administrative [redress]’ as is available; one ‘exhausts’
processes, not forms of relief, and the statute provides that one must.”). Further,
exhaustion must be proper, that is, an inmate is required to follow “all steps that
the agency holds out” for the purposes of giving the agency a full and fair
opportunity to adjudicate the inmate’s claims and correct its own errors.
Woodford, 548 U.S. at 90, 94. Finally, it is the TDCJ’s procedure, not the PLRA,
“that define[s] the boundaries of proper exhaustion”. Jones v. Bock, 549 U.S.
199, 218 (2007) (holding that where a prison’s procedure did not require naming
particular officials in a grievance, a court rule imposing such an exhaustion
requirement was not warranted).
      This court has held that, pursuant to the TDCJ’s grievance process, a
prisoner must pursue a grievance through both steps for it to be exhausted.
Johnson, 385 F.3d at 515 (citing Wright v. Hollingsworth, 260 F.3d 357, 358 (5th
Cir. 2001)). This court has also provided that “[n]othing in the [PLRA] . . .
prescribes appropriate grievance procedures or enables judges, by creative
interpretation of the exhaustion doctrine, to prescribe or oversee prison
grievance systems”. Wright, 260 F.3d at 358 (holding that, although the only

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remedy sought was money damages, “substantial compliance” by filing a step-
one grievance constituted failure to exhaust).
      With these principles in mind, we turn to whether Rosa properly
exhausted his available remedies as provided by TDCJ’s procedure. See Bock,
549 U.S. at 218. As discussed, the Texas prison system has a two-step grievance
process.
      A step-one grievance must be submitted within 15 days of the alleged
incident. Grievance Manual, ch. III, p.11. “Any offender wishing to appeal a
[step-one] response[,] must submit a [step-two] appeal” within 15 days of the
receipt of the step-one response. Grievance Manual, ch. III, p.11 (emphasis
added). “A [step-two] grievance may be filed when an [inmate] is dissatisfied
with the Warden’s response on the [step-one] grievance. Grievance Manual, ch.
V, p.1 (emphasis added); see also TDCJ’s Instructions on How to Write & Submit
Grievances (“If you are not satisfied with the [step-one] response, you may
appeal the [step-one] decision by filing a [step-two]”.); Step 2 Form (requiring an
inmate to state “reasons for appeal” and reasons for dissatisfaction with
response at step-one).
      Grievances that do not meet certain criteria may be returned to an inmate
unprocessed. TDCJ Admin. Directive, AD-03-82, p.7. Some of the reasons for a
grievance to be returned unprocessed include: failure to state requested relief;
the issue presented is not grievable; no remedy exists; and inappropriate
requests for employee disciplinary action or compensation for punitive damages.
TDCJ Admin. Directive, AD-03-82, p.7, see also TDCJ’s Instructions on How to
Write & Submit Grievances.



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      Interpreting the exhaustion requirement in the light of its purpose of
providing TDCJ an opportunity to address Rosa’s complaint internally, see
Johnson, 385 F.3d at 516, review of TDCJ’s grievance procedure compels our
holding   Rosa   properly   exhausted       his   administrative   remedies.   The
commencement of the investigation into Defendants’ actions was all the relief
Rosa could obtain through TDCJ’s grievance process. Rosa obtained that relief
at step-one, and TDCJ did not have the authority to take any other action in
response to Rosa’s step-two grievance, had one been filed. Because TDCJ could
grant no further relief, no further relief was “available” to Rosa (for the reason
that it had already been granted); and, accordingly, there was nothing further
to exhaust. See Booth, 532 U.S. at 736 (exhaustion not required “where the
relevant administrative procedure lacks authority to provide any relief or to take
any action whatsoever in response to a complaint”). In that regard, the district
court was correct in concluding that this matter does not involve a requirement
of filing a step-two grievance that would have been “futile”, but that nonetheless
must be filed to properly exhaust.
      Our holding is further supported by TDCJ’s casting the step-two
requirement as an “appeal” of the outcome at step one and instructing inmates
that grievances will be returned unprocessed where “no remedy exists”.
Requiring inmates to appeal a favorable result and where no other remedy exists
would contradict TDCJ’s own instructions. (In addition, such a requirement
would waste administrative resources.) In this regard, because TDCJ procedure
clearly prohibits inmates from requesting punitive damages, Rosa properly
exhausted despite the fact he did not request punitive damages in his step-one
grievance.

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      Further, the purpose of the exhaustion requirement, namely giving TDCJ
notice and an opportunity to resolve internal problems, was undeniably satisfied.
As noted, as a result of the investigation, one Defendant was criminally
prosecuted for his actions at TDCJ and is no longer employed there; another
Defendant was disciplined; and the third Defendant’s employment at TDCJ was
terminated.
      Finally, this court’s unpublished, non-precedential decisions relied upon
by Defendants, although instructive, are distinguishable. See, e.g., Aguirre v.
Dyer, 233 F. App’x 365, 2007 WL 1541327 (5th Cir. 2007) (holding that an
inmate failed to exhaust where he failed to file a step-two grievance because his
step one was referred to the Internal Affairs Division); Palermo v. Miller, 196 F.
App’x 234, 2006 WL 1917947 (5th Cir. 2006) (failure to exhaust where an inmate
erroneously believed it was unnecessary to file step two); Castro v. Crawfoot, 102
F. App’x 852, 2004 WL 1427106 (5th Cir. 2004) (failure to exhaust where
response to step one was that complaint mandatorily referred to the Internal
Affairs Division); Garza v. Wauson, 57 F. App’x 211, 2003 WL 147727 (5th Cir.
2003) (failure to exhaust where response to step one was that it would receive
further administrative review by the Central Grievance Office and there was no
record of response from that office). None of the above-discussed unpublished
decisions dealt with the question presented here: whether an inmate must file
a step-two grievance where his step-one grievance was resolved in his favor.
      As stated, because TDCJ’s procedure does not require a step-two grievance
where an inmate received all relief he could obtain at step one, we hold that
Rosa properly exhausted his administrative remedies.



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                                      III.
      For this interlocutory appeal, and for the foregoing reasons, the denial of
summary judgment is AFFIRMED and this matter is REMANDED to district
court for further proceedings.
      AFFIRMED and REMANDED.




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