     Case: 14-51095   Document: 00513075559     Page: 1   Date Filed: 06/11/2015




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

                                 No. 14-51095
                                                                             Fifth Circuit

                                                                           FILED
                                                                       June 11, 2015

LEE CANTWELL,                                                         Lyle W. Cayce
                                                                           Clerk
             Plaintiff - Appellant

v.

LEISA STERLING; DOCTOR BAKER; SAMUEL MATTHEWS; PATRICK
D. HAYNES; MONICA A. HOWARD; WARDEN EDGAR D. BAKER,

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Western District of Texas


Before DENNIS, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:
      Lee Cantwell is a Texas prisoner who claims in this case that prison
officials were deliberately indifferent to his serious medical needs, causing him
injury and violating his constitutional rights.     The defendants moved for
summary judgment, contending that Cantwell failed to satisfy the statutory
prerequisite under the Prison Litigation Reform Act of exhausting available
administrative remedies prior to filing suit. See 42 U.S.C. § 1997e(a) (“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
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                                      No. 14-51095
available are exhausted.”).         The district court granted the motion, and
Cantwell appealed.
       For the following reasons, Cantwell’s appeal is not frivolous, and his
motion to proceed in forma pauperis is therefore GRANTED. See Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983). We conclude that further briefing is
unnecessary and now turn to the merits. See Fussell v. Vannoy, 584 F. App’x
270, 271 (5th Cir. 2014) (unpublished); Perkins v. Collins, 482 F. App’x 959,
960 (5th Cir. 2012) (unpublished).
       Exhaustion is an affirmative defense; the defendants have the burden of
proving that the plaintiff failed to exhaust available administrative remedies.
Jones v. Bock, 549 U.S. 199, 216 (2007); Dillon v. Rogers, 596 F.3d 260, 266
(5th Cir. 2010). Here, it is undisputed that Texas prisons have a two-step
grievance process. Cantwell says that he filed a step-one grievance with prison
authorities but never received a response. Because there was no response, he
says, he did not proceed to the second step. 1 The question for us is whether
these circumstances suffice for exhaustion. But we cannot decide that issue on
the present record.
       Exhaustion is defined by the prison’s grievance procedures, and courts
neither may add to nor subtract from them. Jones, 549 U.S. at 218 (“[I]t is the
prison’s requirements, and not the PLRA, that define the boundaries of proper
exhaustion.”); Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001)
(“Nothing in the Prison Litigation Reform Act, however, prescribes appropriate




       1 The district court dismissed Cantwell’s testimony because, as the court saw it, his
allegations of filing a grievance and not receiving a response were “nothing more than
conclusory or unsupported assertions.” That was error. The ordinary rules of civil procedure
are applicable in prisoner suits. Cantwell offered his testimony under penalty of perjury and
declared it to be true and correct, so it must be credited on summary judgment. See Leggett
v. Lafayette, No. 14-10247, ___ F. App’x ___, ___, 2015 WL 1609145, at *2 (5th Cir. Apr. 10,
2015) (unpublished) (citing Ion v. Chevron USA, Inc., 731 F.3d 379, 382 n.2 (5th Cir. 2013)).
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                                      No. 14-51095
grievance procedures or enables judges, by creative interpretation of the
exhaustion doctrine, to prescribe or oversee prison grievance systems.”); Little
v. Jones, 607 F.3d 1245, 1249 (10th Cir. 2010) (“[T]he prison’s procedural
requirements define the steps necessary for exhaustion.”). Here, however, we
do not know what the applicable grievance procedures—those used in
Cantwell’s facility during the time period involved in this case—were. They
are nowhere in the record because the defendants never introduced them as
evidence. Texas does put its grievance procedures on its website, though, Tex.
Dep’t of Criminal Justice, Offender Orientation Handbook, available at
http://www.tdcj.state.tx.us/documents/Offender_Orientation_Handbook_Engli
sh.pdf (last visited June 10, 2015), and we may take judicial notice of the state’s
website. See Coleman v. Dretke, 409 F.3d 665, 667 (5th Cir. 2005). The
procedures on the website, however, are dated January 2015, and the events
involved in this case took place years prior. We have no evidence of whether
the procedures were the same during the relevant time, so the state’s website
is of no help here. In short, the defendants have not put before the district
court or this court the applicable grievance procedures (and we stress
applicable—the ones in force at the relevant time, in the relevant place).
       Without knowing what the applicable grievance procedures say, it’s
impossible to determine whether Cantwell exhausted them. See Scott v. Poret,
548 F. App’x 160, 160 (5th Cir. 2013) (unpublished); Torns v. Miss. Dep’t of
Corr., 301 F. App’x 386, 389 n.3 (5th Cir. 2008) (unpublished). The defendants
had the burden to establish that there were available procedures that Cantwell
did not exhaust, and the district court erred in not holding them to it. 2


       2 In Wilson v. Epps, 776 F.3d 296 (5th Cir. 2015), the plaintiff contended that the
prison’s failure to respond to his initial grievance excused him from further steps in the
process. Id. at 301. We explained that “[t]his argument deserves close[] scrutiny, because,
under some circumstances, a prison’s failure to respond to a prisoner’s grievance can result
in the prisoner’s administrative remedies being deemed exhausted.” Id. The relevant
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                                      No. 14-51095
       The district court’s summary judgment is REVERSED.                     The case is
REMANDED for further proceedings.




circumstances, we explained, are the requirements of the prison’s grievance procedures. The
grievance procedures at issue in Wilson stated that if a prisoner does not receive a response
to his grievance, the prisoner is “entitled”—and therefore, to exhaust, must—“move on to the
next step in the process.” Id. (quoting grievance procedures). By contrast, in Underwood v.
Wilson, 151 F.3d 292 (5th Cir. 1998), overruled on other grounds as explained in Gonzalez v.
Seal, 702 F.3d 785 (5th Cir. 2012), we held that when a prison’s procedures prescribe
deadlines by which the authorities must respond to grievances and do not set out any
additional steps that prisoners must take upon that time elapsing, then prisoners in such
circumstances have exhausted the available procedures. Id. at 295. Whether this case is in
line with Wilson on the one hand, Underwood on the other, or presents other circumstances
yet, we cannot say without the applicable grievance procedures before us.
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