     Case: 17-40494      Document: 00514500126         Page: 1    Date Filed: 06/05/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 17-40494                                FILED
                                  Summary Calendar                           June 5, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
HERNAN CORTEZ,

                                                 Plaintiff-Appellant

v.

JEFFREY RICHARDSON; VERNON B. MITCHELL, JR.; K. ANTHONY;
SEAN F. MARSHALL; BRANDON STOTTS,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:16-CV-1115


Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges
PER CURIAM: *
       Hernan Cortez, Texas prisoner # 01542111, filed a civil rights complaint
against prison officials under 42 U.S.C. § 1983. He claimed that Sergeant
Katrice Anthony used excessive force by using a chemical spray against him in
his cell. After the screening stage dismissal of all claims except those against
Anthony, see 28 U.S.C. § 1915A, the State moved for summary judgment on



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-40494

several theories: (1) Cortez failed to exhaust his administrative remedies when
he filed his grievance 20 days late; (2) Anthony was entitled to qualified
immunity because (a) Cortez did not suffer more than a de minimis injury and
(b) Anthony’s actions were not objectively unreasonable; and (3) Anthony was
entitled to immunity under the Eleventh Amendment insofar as she acted in
her official capacity. The district court granted summary judgment on the
basis of failure to exhaust and therefore dismissed the remaining claims.
Cortez appeals the court’s summary judgment ruling.
      We review a summary judgment de novo, using the same standard as
that employed by the district court. McFaul v. Valenzuela, 684 F.3d 564, 571
(5th Cir. 2012). Summary judgment shall be granted “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), a prisoner must “properly exhaust”
administrative remedies prior to filing a § 1983 action. See Woodford v. Ngo,
548 U.S. 81, 84 (2006). Exhaustion is mandatory and courts may not excuse
the failure to exhaust. Gonzalez v. Seal, 702 F.3d 785, 787 (5th Cir. 2012).
Failure to exhaust is an affirmative defense, which must be demonstrated by
the party advancing the defense. Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir.
2010). Proper exhaustion is determined by reference to the state grievance
procedures. See, e.g., Jones v. Bock, 549 U.S. 199, 217-18 (2007).
      The State did not demonstrate that Cortez failed to exhaust his
administrative remedies. Notably, prison officials considered and rejected his
grievance on the merits, at both the Step 1 and Step 2 stages.           As best
interpreted under the doctrine of liberal construction, Cortez did not ask that
the district court excuse a failure to exhaust but instead argued that prison
officials’ consideration of the substance of his grievance qualified as compliance



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                                 No. 17-40494

with the exhaustion requirement. Cortez’s argument is supported by case law.
See Johnson v. Johnson, 385 F.3d 503, 520 (5th Cir. 2004); Gates v. Cook, 376
F.3d 323, 331 n. 6 (5th Cir. 2004) (holding that prison officials could not argue
that a prisoner’s grievance failed to comply with procedural rules when the
officials had looked past the purported technical defect and rejected the
grievance for substantive reasons); see also Patterson v. Stanley, 547 F. App’x
510, 512 (5th Cir. 2013). Because the district court improperly rejected this
argument, it erred when it granted summary judgment on failure-to-exhaust
grounds.
      Therefore, we VACATE the district court’s summary judgment dismissal
of the claims against Anthony and REMAND for consideration of the other
arguments for summary judgment.




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