     Case: 13-10398      Document: 00512763891         Page: 1    Date Filed: 09/10/2014




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

                                                                                FILED
                                    No. 13-10398                       September 10, 2014
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
JAY ANTHONY NOTTINGHAM, also known as Jay Nottingham, also known
as Jay Thrasher, also known as James Andrew Armstrong, also known as Jeff
Andrew Montgomery, also known as Jeffrey Montgomery, also known as Jay
Dillan, also known as Sterling Armstrong Harrison, also known as Jay Dillian,
also known as Jay Hamilton Sterling, also known as Jay Anthony Mottingham,
also known as Jay Nothingham, also known as Hunter O'Brian, also known as
Jay A. Nottingham, also known as Jeffery Andrew Montgomery, also known as
Sterling Harrison, also known as Jay Anthony Nuttingham,

                                                 Plaintiff-Appellant

v.

JOEL FINSTERWALD, Sheriff of Wheeler County; CARRIE GAINES,
Wheeler County Jail Administrator; WHEELER COUNTY,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:10-CV-23


Before STEWART, Chief Judge, and SOUTHWICK and HIGGINSON, Circuit
Judges.
PER CURIAM: *


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-10398     Document: 00512763891     Page: 2   Date Filed: 09/10/2014


                                  No. 13-10398

      Jay Anthony Nottingham, former Texas prisoner # 1490726, appeals the
dismissal of his 42 U.S.C. § 1983 complaint for failure to exhaust
administrative remedies. Proceeding with the parties’ consent pursuant to 28
U.S.C. § 636(c), the magistrate judge (MJ) granted Defendants’ motion for
summary judgment and dismissed Nottingham’s complaint without prejudice.
      We review a summary judgment ruling de novo, using the same standard
employed by the district court. Carnaby v. City of Houston, 636 F.3d 183, 187
(5th Cir. 2011).     Pursuant to the Prison Litigation Reform Act (PLRA),
“prisoners must properly exhaust ‘such administrative remedies as are
available’ prior to filing a section 1983 action concerning prison conditions.”
Dillon v. Rogers, 596 F.3d 260, 265 (5th Cir. 2010) (quoting 42 U.S.C.
§ 1997e(a)). When a defendant asserts the affirmative defense of exhaustion,
the district court should rule on this issue before allowing the case to proceed
to the merits. Id. at 272-73. In making this ruling, the district court may act
as the factfinder and resolve disputed facts concerning exhaustion without the
participation of a jury. Id. We review the district court’s ruling on exhaustion
de novo and its factual findings for clear error. Id. at 273.
      Failure to exhaust administrative remedies is an affirmative defense
that can be waived if not asserted by the defendant. Jones v. Bock, 549 U.S.
199, 216 (2007); Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007). The MJ
correctly concluded that Defendants did not waive the defense because they
raised it at a pragmatically sufficient time and Nottingham was not prejudiced
in his ability to respond. See Vanhoy v. United States, 514 F.3d 447, 450-51
(5th Cir. 2008).
      The MJ was permitted to resolve the disputed factual issues regarding
exhaustion without the participation of a jury. See Dillon, 596 F.3d at 272-73.
The MJ found that that Nottingham did not file or attempt to file any



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                                 No. 13-10398

grievances as he stated in his original complaint. This finding was plausible
in light of the timing and contradictory nature of Nottingham’s later assertions
that he did file grievances as well as Defendants’ evidence setting forth the
grievance procedure at the Wheeler County Jail and Nottingham’s knowledge
of and failure to avail himself of this procedure. Therefore, the MJ’s finding
that Nottingham did not exhaust his administrative remedies was not clearly
erroneous. See id. at 272-73.
      As to his remaining arguments, Nottingham offers only unsupported
assertions regarding the availability of administrative remedies once he was
transferred to another jail. The “extraordinary circumstances” of his case,
which he asserts necessitated his transfer from the Wheeler County Jail to a
facility that could house a disabled pretrial detainee, do not excuse his failure
to exhaust. See Dillon, 596 F.3d at 270. The MJ did not err by dismissing
Nottingham’s complaint for failure to exhaust administrative remedies.
      The judgment is AFFIRMED.




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