     Case: 17-60247      Document: 00514901269         Page: 1    Date Filed: 04/03/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 17-60247                       United States Court of Appeals

                                  Summary Calendar
                                                                                Fifth Circuit

                                                                              FILED
                                                                           April 3, 2019

DAVID JACKSON,                                                           Lyle W. Cayce
                                                                              Clerk
                                                 Plaintiff-Appellant

v.

PELICIA HALL, COMMISSIONER, MISSISSIPPI DEPARTMENT OF
CORRECTIONS, In Her Individual and Official Capacities; JACQUELYN
BANKS, In Her Individual and Official Capacities as Superintendent of
S.M.C.I.; CENTURION, (Company), Medical Provider,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:16-CV-199


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
       David Jackson, Mississippi prisoner # 39640, filed a complaint against
the defendants under 42 U.S.C. § 1983, alleging that they had violated his
Eighth Amendment rights by failing to take measures to control disease and
provide him with medical treatment for various maladies. He appeals the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-60247      Document: 00514901269   Page: 2   Date Filed: 04/03/2019


                                 No. 17-60247

district court’s summary judgment dismissal of his claims for failure to exhaust
administrative remedies and the denial of his Federal Rule of Civil Procedure
59(e) motion to alter or amend the judgment. He also appeals the denial of his
motions for the appointment of counsel and a preliminary injunction.
      As an initial matter, Jackson’s claims of procedural error in the handling
of his case are unavailing. The magistrate judge did not exceed his authority
by issuing a report to the district court recommending the denial of an
injunction and the summary judgment dismissal of Jackson’s claims. See 28
U.S.C. § 636(b)(1)(B). Nor did the district court err by ruling on Jackson’s
claims in the context of a summary judgment motion or abuse its discretion by
dismissing his claims without allowing discovery or conducting an evidentiary
hearing. See FED. R. CIV. P. 56; Washington v. Allstate Ins. Co., 901 F.2d 1281,
1285 (5th Cir. 1990).
      Jackson has not shown that the district court abused its discretion in
denying his motion for the appointment of counsel.         His claims are not
particularly complex, and his prior filings demonstrate that he is capable of
conveying his allegations. His case does not involve the type of exceptional
circumstances that require the appointment of counsel.           See Ulmer v.
Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982).
      The district court also did not err by dismissing Jackson’s claims for
failure to exhaust and denying Jackson’s Rule 59(e) motion.           Summary
judgment is proper if the pleadings and evidence, viewed in a light most
favorable to the nonmoving party, “show[] 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), (c); see Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir.
2007). We review the district court’s summary judgment dismissal of Jackson’s
action de novo. See Wilson v. Epps, 776 F.3d 296, 299 (5th Cir. 2015).



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                                 No. 17-60247

      Exhaustion is mandatory under 42 U.S.C. § 1997e(a). See § 1997e(a);
Woodford v. Ngo, 548 U.S. 81, 84 (2006). The Mississippi Department of
Corrections (MDOC) has a two-step Administrative Remedy Program (ARP)
for presenting grievances.      The defendants met their initial summary
judgment burden of showing that there was no genuine issue of material fact
regarding exhaustion by referencing Jackson’s concession that he had not
completed the MDOC’s two-step ARP and submitting an affidavit indicating
that Jackson had not used the MDOC’s ARP to raise issues relating to his
claims. Although Jackson submitted evidence of various informal complaints
and ARP grievances he had filed, none of those documents contradicted the
defendants’ evidence on that crucial point. See Woodford, 548 U.S. at 90-95;
Wilson, 776 F.3d at 299-300. Because Jackson failed to come forward with
specific facts showing there was a genuine dispute as to exhaustion, the district
court was required to dismiss his claims. See Gonzalez v. Seal, 702 F.3d 785,
788 (5th Cir. 2012). Jackson’s failure to exhaust was not remedied by his
alleged completion of the two-step grievance process after the district court
dismissed his case. See id.
      As Jackson did not exhaust his administrative remedies before he filed
his complaint, he could not show a likelihood of success on the merits of his
claims. He has not shown that the district court abused its discretion in
denying injunctive relief. Moore v. Brown, 868 F.3d 398, 402-03 (5th Cir. 2017).
      The judgment of the district court is AFFIRMED.




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