     Case: 17-60525      Document: 00514717261         Page: 1    Date Filed: 11/08/2018




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

                                      No. 17-60525                             FILED
                                                                        November 8, 2018
                                                                          Lyle W. Cayce
HENRY HINTON, JR., and Others Similar Situated,                                Clerk

              Plaintiff - Appellant

v.

DENNIS MARTIN; PREMIER SUPPLY LINK, L.L.C.,

              Defendants - Appellees




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:16-CV-616


Before DAVIS, COSTA, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Henry Hinton, Jr., Mississippi prisoner # 200283, appeals the district
court’s summary judgment in favor of defendants, Premier Supply Link,
L.L.C., and its owner, Dennis Martin, who operate the prison commissary at
Central Mississippi Correctional Facility. Hinton alleged that the defendants
were state actors who: (1) deprived him and other inmates of their right
against taxation without representation by charging city, county, and state tax


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-60525
on commissary purchases and (2) stole inmate account funds by electronically
deducting fees without prior notice.              The defendants moved for summary
judgment, asserting that Hinton failed to exhaust his administrative remedies
before filing suit.      The district court granted the defendants’ motion for
summary judgment and dismissed Hinton’s complaint without prejudice. For
the reasons set forth below, we VACATE and REMAND. 1
       This court reviews de novo a district court’s grant of summary judgment.
Davis v. Fernandez, 798 F.3d 290, 292 (5th Cir. 2015). 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).    Under the Prison Litigation Reform Act (PLRA), inmates must
exhaust “such administrative remedies as are available” prior to bringing a
civil action. 42 U.S.C. § 1997e(a). The exhaustion requirement applies to all
lawsuits which challenge prison conditions and is not limited to civil rights
claims brought under 42 U.S.C. § 1983. Woodford v. Ngo, 548 U.S. 81, 85
(2006).     Furthermore, the PLRA’s exhaustion requirement is mandatory,
“foreclosing judicial discretion.” Ross v. Blake, 136 S. Ct. 1850, 1857 (2016).
       As the Supreme Court has noted, however, “the PLRA contains its own,
textual exception to mandatory exhaustion.” Id. at 1858. “Under § 1997e(a),
the exhaustion requirement hinges on the ‘availab[ility]’ of administrative
remedies: An inmate, that is, must exhaust available remedies, but need not
exhaust unavailable ones.”            Id.    The Court further explained that an
administrative remedy may be unavailable where (1) prison officials are
“unable or consistently unwilling to provide any relief to aggrieved inmates,”
(2) the administrative scheme is “so opaque that it becomes, practically


       1Because Hinton brought this in forma pauperis appeal prior to earning three strikes,
the 28 U.S.C. § 1915(g) bar does not apply to this matter. See Coleman v. Tollefson, 135 S. Ct.
1759, 1763-64 (2015); Banos v. O’Guin, 144 F.3d 883, 884-85 (5th Cir. 1998).
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                                  No. 17-60525
speaking, incapable of use” by an ordinary prisoner, or (3) prison
administrators “thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.” Id. at 1859-60.
      In this matter, it is undisputed that prison officials rejected Hinton’s
grievances for the technical reason that the grievances allegedly contained
multiple complaints. It is also undisputed that Hinton did not file corrected
grievances. Hinton, thus, failed to complete the prescribed administrative
procedure, as his grievances never progressed past the initial screening stage.
Hinton asserts, however, that prison officials frustrated and impeded his
exhaustion efforts by erroneously rejecting his grievances as raising multiple
complaints; that he was unable to figure out how to correct and refile the
grievances that, in fact, each contained only one complaint; and that there was
no provision to appeal the procedural rejections. Hinton contends that, under
such circumstances, the district court had discretion to excuse the exhaustion
requirement and that his allegations raised an issue of material fact regarding
whether the prison’s grievance process was “available” to him.
      As the district court determined, it has no authority to excuse an
inmate’s failure to exhaust under the PLRA.          Ross, 136 S. Ct. at 1856.
However, as Hinton contends and as set forth in Ross, the exhaustion
requirement does not apply to administrative remedies that are unavailable to
the inmate. Although Hinton has not cited Ross, we “liberally construe the
briefs of pro se appellants,” Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993),
and his allegations and arguments fairly raised the question whether the
prison’s administrative grievance procedure was “available” to him.          The
district court did not apply the standard set forth in Ross for determining
whether the administrative remedies unexhausted by Hinton were “available”
to him.


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                                No. 17-60525
      Based on the foregoing, we vacate the district court’s summary judgment
in favor of the defendants and remand this matter so that the district court
may apply the standard set forth in Ross in the first instance and for further
proceedings, as needed, on remand.
      VACATED and REMANDED.




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