     Case: 10-41305     Document: 00511707883         Page: 1     Date Filed: 12/28/2011




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

                                                                            FILED
                                                                        December 28, 2011

                                       No. 10-41305                        Lyle W. Cayce
                                                                                Clerk

PATRICK BERNARD SMITH,

                                                  Plaintiff-Appellant
v.

SGT. MICHAEL OLSEN; ROBERT D. ROE; KEVIN L. CARLVIN;
CORRECTIONAL OFFICER JESSE L. DAVIS; CORRECTIONAL OFFICER
DOMENICO DEPALMA; CORRECTIONAL OFFICER ERIC A. MCCLENDON;
CORRECTIONAL OFFICER GREG S. VICKERY; CORRECTIONAL OFFICER
DAVID K. WRIGHT; NURSE JANE DOE; OFFICERS JOHN DOE, 1-5; NANCY
J. YOUNG; DONNA STEELY; OFFICER PENELOPE BARNES, also known as
Penelope R. Burnes,

                                                  Defendants-Appellees



                  Appeals from the United States District Court
                         of the Eastern District of Texas
                        U.S.D.C. No. 6:10-cv-00243-JKG


Before HIGGINBOTHAM, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Patrick Bernard Smith appeals the dismissal of his
complaint for failure to exhaust administrative remedies. We REVERSE.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-41305      Document: 00511707883      Page: 2   Date Filed: 12/28/2011



                                    No. 10-41305

                                          I.
        On April 3, 2009, Smith, a prisoner, filed the instant civil rights action pro
se in the Southern District of Texas, asserting that prison officials
inappropriately treated his left knee injury, which was caused by an accident on
the uneven surfaces of a prison recreation yard during a basketball game in
2007. On September 23, 2009, Smith was permitted to file a second amended
complaint, which detailed that his knee condition was exacerbated by the
excessive force of security officers during an altercation following his discharge
from a prison infirmary in March of 2009. On May 5, 2010, in response to
Smith’s evolving narrative, the claims related to incidents arising at the George
Beto Unit were transferred to the Eastern District of Texas, forming the instant
case.
        The parties consented to magistrate jurisdiction pursuant to 28 U.S.C. §
636(c). On November 1, 2010, following an evidentiary hearing, the magistrate
judge granted several defendants’ motion for summary judgment and dismissed
the complaint with prejudice for failure to exhaust administrative remedies.
This appeal followed.
                                          II.
        The dismissal for failure to exhaust administrative remedies is reviewed
de novo. Powe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999). “We [also] review the
grant of summary judgment de novo, applying the same standards as the district
court.” In re Egleston, 448 F.3d 803, 809 (5th Cir. 2006) (internal quotation
marks and citation omitted). Summary judgment is proper if the evidence shows
that there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. Kee v. City of Rowlett, 247 F.3d 206,
210 (5th Cir. 2001).
        “Under the Prison Litigation Reform Act (‘PLRA’), prisoners must properly
exhaust ‘such administrative remedies as are available’ prior to filing a section

                                           2
   Case: 10-41305       Document: 00511707883          Page: 3    Date Filed: 12/28/2011



                                       No. 10-41305

1983 action concerning prison conditions.” Dillon v. Rogers, 596 F.3d 260, 265
(5th Cir. 2010) (quoting 42 U.S.C. § 1997e(a)). The Texas Department of
Criminal Justice follows a two-step grievance procedure. “[A] prisoner must
pursue a grievance through both steps for it to be considered exhausted.”
Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004). We have taken a “strict
approach” to the PLRA’s exhaustion requirement. Dillon, 596 F.3d at 268.
       The summary judgment evidence established that Smith filed four Step
1 grievances within the relevant time prior to filing his original complaint.
However, Smith did not proceed to file a Step 2 grievance after one of his Step
1 grievances was denied, and initiated this lawsuit prior to resolution of the two-
step process for each of his remaining grievances. As Smith did not complete the
two-step process for any of his grievances prior to initiating his case, the
Magistrate Judge dismissed the case for failure to exhaust administrative
remedies.
       Smith, however, argues on appeal that his case should not have been
dismissed because one of his grievances, # 2009117825, was properly exhausted
after the filing of his original complaint but prior to the filing of his second
amended complaint.1 Grievance # 2009117825 was filed at Step 1 on March 18,
2009. Smith’s Step 1 grievance was denied on April 3, 2009, and his subsequent
Step 2 grievance was denied on May 27, 2009. Thus, Smith had completed both
steps before he was given permission to amend his complaint for the second time
on September 23, 2009.
       An amended complaint will not typically cure the failure to exhaust



       1
         Smith filed several other grievances which were exhausted prior to the filing of his
second amended complaint. However, in his brief, he emphasized and reiterated several times
that grievance # 2009117825 became “the basis of this lawsuit[,]” “is the main primary issue
and not [any] other grievances[,]” and “is the only grievance referring to the excessive use of
force . . . .” Accordingly, as Smith has waived all argument with respect to his other
grievances, this opinion addresses only grievance # 2009117825.

                                              3
   Case: 10-41305   Document: 00511707883     Page: 4   Date Filed: 12/28/2011



                                 No. 10-41305

administrative remedies prior to initially filing suit. See Wendell v. Asher, 162
F.3d 887, 890 (5th Cir. 1998) (explaining that the PLRA “plainly requires that
administrative remedies be exhausted before the filing of a § 1983 suit, rather
than while the action is pending”), overruled by implication on other grounds by
Jones v. Bock, 549 U.S. 199 (2007); Galvan v. SBC Pension Benefit Plan, 204 F.
App’x 335 (5th Cir. 2006) (affirming dismissal in ERISA action where plaintiff
amended her complaint after exhaustion but filed her complaint prior to
exhaustion).
      In the instant case, however, Smith raised new factual allegations in his
second amended complaint, also reflected in grievance # 2009117825, that he
had not raised in his initial or first amended complaints. These allegations
described physical abuse during his forced removal from the Beto Unit
infirmary. Smith’s distinct claims for incidents arising at the Beto Unit were
transferred from the Southern District of Texas to the Eastern District of Texas,
forming the instant lawsuit. It is apparent that Smith intended his second
amended complaint to raise new claims, which he had exhausted, and these
claims were so unrelated to his original complaint that they ultimately became
a separate lawsuit. It is therefore in the interest of fairness that Smith, a pro
se inmate, be allowed to proceed with the claims he exhausted pursuant to
grievance # 2009117825 prior to the filing of his second amended complaint.
                                      III.
      For the foregoing reasons, we REVERSE the judgment, and REMAND
for further proceedings consistent with this opinion.




                                       4
