     Case: 11-40740     Document: 00511822739         Page: 1     Date Filed: 04/16/2012




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

                                                                            FILED
                                                                           April 16, 2012
                                     No. 11-40740
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

MICHAEL STOUT,

                                                  Plaintiff-Appellant

v.

ALETHEA NORTH-WILLIAMS;                       STACEY         LEBLANC;         UNKNOWN
MCINTYRE, Security Sergeant,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:09-CV-67


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Michael Stout, Texas prisoner # 1282657, has appealed the district court’s
order and judgment granting the motions for summary judgment of defendants
Alethea North-Williams and Stacey LeBlanc for failure to exhaust state
remedies. He has also appealed the district court’s order denying his motion to
alter or amend the judgment.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40740

      Stout has moved to supplement the record on appeal, and he has attached
documents to his brief that are not in the record. The motion is DENIED. See
Leonard v. Dixie Well Service & Supply, Inc., 828 F.2d 291, 296 (5th Cir. 1987).
We have not considered the documents attached to Stout’s brief.
      Stout complains of the district court’s denial of his motion for appointment
of counsel.   Stout has not shown that exceptional circumstances required
appointment of counsel. See Cooper v. Sheriff, Lubbock Cnty., Tex., 929 F.2d
1078, 1084 (5th Cir. 1991).
      We review de novo a district court’s summary judgment dismissal of a 42
U.S.C. § 1983 complaint for failure to exhaust. Dillon v. Rogers, 596 F.3d 260,
266 (5th Cir. 2010). The party moving for summary judgment bears the initial
burden of “informing the district court of the basis for its motion, and [of]
identifying those portions of [the record] which it believes demonstrate the
absence of a genuine” dispute as to a material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986).
      Under the Prison Litigation Reform Act (PLRA), inmates must exhaust
“such administrative remedies as are available” prior to bringing a civil action.
42 U.S.C. § 1997e(a). “[F]ailure to exhaust is an affirmative defense under the
PLRA, and . . . inmates are not required to specially plead or demonstrate
exhaustion in their complaints.” Jones v. Bock, 549 U.S. 199, 216 (2007). “Since
exhaustion is an affirmative defense, the burden is on the Appellees to
demonstrate that [Stout] failed to exhaust available administrative remedies.”
Dillon, 596 F.3d at 266.
      Stout contended in his amended complaint that he was assaulted and
seriously injured by members of a prison gang that had put a “hit” on him. He
also claimed that North-Williams, a prison guard, failed to protect him from the
assault. In an affidavit submitted in support of North-Williams’s motion for
summary judgment, Sandra Murphy, the Texas Department of Criminal Justice
Administrator of Offender Grievances, stated that she had reviewed Stout’s

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                                  No. 11-40740

grievance records for the period between June 2008 and April 2009 and that four
Step 1 grievances were returned unprocessed to Stout because of Stout’s failure
to follow prison guidelines for filing grievances. The summary judgment
evidence reflects that Stout failed to comply with the prison’s administrative
deadlines and procedural rules and that he did not completely exhaust his
administrative remedies with respect to his claims against North-Williams. See
Woodford v. Ngo, 548 U.S. 81, 90-91 (2006); Johnson v. Johnson, 385 F.3d 503,
515 (5th Cir. 2004). The district court did not err in granting North-Williams’s
motion for summary judgment. See Dillon, 596 F.3d at 266. The judgment is
affirmed in part.
      Stout’s claims against LeBlanc, who was a State Classification Committee
board member, pertain to her August 13, 2007, decision denying Stout placement
in safe keeping. LeBlanc asserted in her motion for summary judgment that she
had “found no record independent of the pleadings that Plaintiff ha[d] filed any
grievance against her, either before or after the incident in question.” This
statement was not verified and was not supported with an affidavit. Murphy did
not state in her affidavit that she had reviewed Stout’s grievance records for the
period between LeBlanc’s adverse decision and June 2008. LeBlanc has failed
to carry her initial burden of proof as to her affirmative defense that Stout failed
to exhaust his administrative remedies. See Jones, 549 U.S. at 216; Dillon, 596
F.3d at 266.
      Stout attached to his verified motion to alter or amend the judgment
documents indicating that he filed Step 1 grievance number 2007208753
complaining of life endangerment on August 15, 2007, and that he filed a Step
2 grievance in the same matter on December 28, 2007. This new evidence
indicated that there was a genuine issue of fact as to whether Stout had
exhausted his claims against LeBlanc. See Johnson, 385 F.3d at 515.
      The district court erred in granting LeBlanc’s motion for summary
judgment, and it abused its discretion in denying the motion to alter or amend

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the judgment. See Dillon, 596 F.3d at 266; Johnson v. Diversicare Afton Oaks,
L.L.C., 597 F.3d 673, 677 (5th Cir. 2010). The judgment is vacated in part and
remanded for further proceedings.
      AFFIRMED IN PART, VACATED IN PART AND REMANDED.




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