     Case: 09-30126     Document: 0051998536        Page: 1    Date Filed: 01/07/2010




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

                                                 FILED
                                                                        January 7, 2010
                                    No. 09-30126
                                  Summary Calendar                   Charles R. Fulbruge III
                                                                             Clerk

RICHARD ANTHONY HEMPHILL,

                                          PlaintiffSAppellant
v.

RICHARD INGLESE, Medical Director of the St. Tammany Parish Jail;
GARY BENSCEK, Doctor

                                          DefendantsSAppellees



                  Appeal from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:07-CV-5565



Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Richard Anthony Hemphill filed suit under 42 U.S.C. § 1983 against
various parties, alleging violations of the Eighth Amendment for denial of proper
medical treatment while incarcerated at St. Tammany Parish Jail.                      The
magistrate judge dismissed Hemphill’s suit for failure to exhaust his
administrative remedies. We affirm.


       *
         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not be published and is not precedent except under the limited circumstances set forth in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. 09-30126

           I. FACTUAL AND PROCEDURAL BACKGROUND
      Hemphill arrived at St. Tammany Parish Jail with stitches in his face and
mouth. Over the course of many months, Hemphill received treatments for pain
and vision problems stemming from his injuries. In his complaint, he alleged
that he did not receive other recommended treatments. Hemphill brought suit
against the St. Tammany Parish Coroner’s Office, Dr. Peter Galvan, Dr. Richard
Inglese, and Dr. Gary Benscek. The magistrate judge dismissed the Parish
Coroner’s Office and Galvan in an unappealed order.
      Inglese and Benscek (“Defendants–Appellees”) filed a motion for summary
judgment, arguing that Hemphill failed to exhaust his administrative remedies.
See 42 U.S.C. § 1997e(a). In support of their motion, Defendants–Appellees
provided Hemphill’s medical records and an affidavit of Deputy Warden Greg
Longino explaining the St. Tammany Parish Jail’s administrative remedy
procedure (“ARP”). In response, Hemphill provided documents showing that he
requested an ARP form and complained about his medical treatment. The
magistrate judge granted the motion for summary judgment, and Hemphill
timely appealed.
                                 II. ANALYSIS
      We review the magistrate judge’s grant of summary judgment de novo.
United States v. Lawrence, 276 F.3d 193, 195 (5th Cir. 2001) (citation omitted).
Summary judgment is appropriate when, after considering the pleadings,
depositions, answers to interrogatories, admissions on file, and affidavits, “there
is no genuine issue as to any material fact and . . . the moving party is entitled
to a judgment as a matter of law.” F ED. R. C IV. P. 56(c).
      The Prison Litigation Reform Act of 1995 (“PLRA”) provides that “[n]o


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                                  No. 09-30126

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 available are
exhausted.” 42 U.S.C. § 1997e(a). In cases covered by the PLRA, exhaustion is
mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002).
      “The PLRA’s exhaustion requirement apples to all inmate suits about
prison life, whether they involve general circumstances or particular episodes,
and whether they allege excessive force or some other wrong.” Id. at 532. We
have held that “quibbles about the nature of a prisoner’s complaint, type of
remedy sought, and the sufficiency or breadth of prison grievance procedures”
were foreclosed by the broad scope of the PLRA. Wright v. Hollingsworth, 260
F.3d 357, 358 (5th Cir. 2001) (citing Booth v. Churner, 532 U.S. 731, 741 n.6
(2001)).
      According to the Longino affidavit, St. Tammany Parish Jail uses a two-
step ARP. The inmate must first submit an ARP form within ninety days of the
incident giving rise to the grievance (in lieu of the form, an inmate may submit
a written communication clearly labeled “this is a grievance through the ARP”).
If the inmate is not satisfied with the outcome of the first step, the inmate may
proceed to the second step: an appeal to the Sheriff. The inmate may file suit if
dissatisfied with the response to the second step.
      In their motion for summary judgment, Defendants–Appellees asserted
that Hemphill had not completed even the first step of the ARP. In opposition,
Hemphill produced written communications demonstrating that he complained
to prison officials regarding his medical care. In one of those communications,
Hemphill requested an ARP form. Based on his submissions, Hemphill argues


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(1) that he has established a triable issue of fact as to administrative exhaustion,
and (2) because prison officials did not provide him an ARP form, the
combination of the medical complaints and the request for an ARP form satisfied
the administrative exhaustion requirement.
      Hemphill’s argument that he established a triable issue of fact as to
administrative exhaustion is without merit. Hemphill cites cases from other
circuits to support his argument that a disputed issue of fact as to
administrative exhaustion should be decided by a jury. See Braham v. Clancy,
425 F.3d 177 (2d Cir. 2005); Maraglia v. Maloney, 499 F. Supp. 2d 93 (D. Mass.
2007); Russo v. Palmer, 990 F. Supp. 1047 (N.D. Ill. 1998). We note that Braham
has been explicitly overruled by the Second Circuit, see Macias v. Zenk, 495 F.3d
37, 43–45 (2d Cir. 2007), and the Seventh Circuit effectively overruled Russo in
Perez v. Wisconsin Department of Corrections, 182 F.3d 532, 536 (7th Cir. 1999).
In Maraglia, the plaintiff claimed that he filed a grievance that was ignored.
499 F. Supp. 2d at 96. Here, Hemphill does not claim that he filed a grievance;
rather, he claims that his medical complaints and ARP form request were
enough to raise a triable issue of fact as to the satisfaction of his administrative
remedies. We disagree.
      In Woodford v. Ngo, 548 U.S. 81 (2006), the Supreme Court explained that
“proper exhaustion” under the PLRA requires the prisoner to “compl[y] with the
system’s critical procedural rules.” Id. at 90. The Supreme Court reasoned that
a “prisoner who does not want to participate in the prison grievance system will
have little incentive to comply with the system’s procedural rules unless
noncompliance carries a sanction” and therefore “[t]he benefits of exhaustion can
be realized only if the prison grievance system is given a fair opportunity to


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                                  No. 09-30126

consider the grievance.” Id. at 95. According to Woodford, Hemphill must show
that he attempted to fully comply with the jail’s administrative grievance
procedures.
      To properly exhaust his claim, Hemphill had to complete an ARP form, or
its clearly-marked equivalent, await a response, and then appeal to the Sheriff.
Hemphill did not complete even the first step of the St. Tammany Parish Jail
ARP, and thus did not properly exhaust his claim.         The magistrate judge
correctly granted summary judgment to Defendants–Appellees.
      Even if the medical complaints and ARP form request satisfied the first
step of the St. Tammany Parish Jail administrative procedure, Hemphill never
appealed to the Sheriff. In Underwood v. Wilson, we accepted that the definition
of “exhaust” is “‘to take complete advantage of (legal remedies).’” 151 F.3d 292,
295 (5th Cir. 1998) (citing W EBSTER’S N EW I NT’L D ICTIONARY 796 (3d ed. 1981)).
We have held that complying with the first step of an administrative grievance
procedure will not suffice to exhaust administrative remedies if the grievance
procedure contemplates additional steps. See Wright, 260 F.3d at 358. Even if
Hemphill satisfied the first step of the ARP, he did not follow through with the
second step and the magistrate judge correctly granted summary judgment to
Defendants-Appellees.
                             III. CONCLUSION
      For the reasons set forth above, we AFFIRM the magistrate judge’s grant
of summary judgment to the Defendant-Appellees.
      AFFIRMED.




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