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

                                                                            FILED
                                                                         January 14, 2008

                                       No. 06-41082                   Charles R. Fulbruge III
                                                                              Clerk

ALBERT GENE JOHNSON

                                                  Plaintiff-Appellee
v.

SERGEANT MARCUS D. FORD, ET AL.

                                                  Defendants-Appellants



                   Appeal from the United States District Court
            for the Southern District of Texas, Corpus Christi Division
                             USDC No. 2:05-CV-223


Before HIGGINBOTHAM, DAVIS, and SMITH, Circuit Judges.
PER CURIAM:1
       This is an interlocutory appeal in a 42 U.S.C. § 1983 action from a denial
of motion for summary judgment seeking dismissal based on a state prisoner’s
failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a).
This Court granted an interlocutory appeal on the issue of whether a state
prisoner may properly bring suit against prison guards who for three days
denied him access to insulin shots he was to receive where the inmate had not
exhausted administrative remedies before bringing suit. More particularly, we


       1
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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consider whether after the recent Supreme Court case Woodford v. Ngo, ___ U.S.
___, 126 S. Ct. 2378 (2006), the state prisoner can avoid the exhaustion
requirement based on waiver, estoppel, or equitable tolling. We hold that under
the facts of this case, he cannot.
                                          I.
         Albert Gene Johnson, a Texas prisoner, filed a complaint against
defendant prison officers claiming that they were deliberately indifferent to his
serious medical needs when they denied him access to medical treatment. He
alleged that the officers deprived him of his twice-daily insulin shots for three
days in a row, November 19, 20, and 21, 2004, despite his symptoms of elevated
blood sugar and his repeated requests to be taken to the infirmary for the shots.
         On November 20, 2004, Johnson wrote to the Texas Board of Criminal
Justice, Office of the Inspector General, Investigations Department, complaining
that he had not been escorted by the officers to receive his insulin shots. On
November 20, Johnson also sent an informal I-60 request to Warden Stephens,
and on November 21, Johnson sent an I-60 request to Physician’s Assistant
Woodcroft, each making the same complaint about not receiving his insulin
shots.
         On November 24, Johnson was notified that Stephens had informed
Captain Martinez of Johnson’s I-60 request and had advised Martinez: “Due to
the seriousness of the allegations, I am requesting that you conduct an
investigation and forward a response to my office no later than Tuesday,
November 30, 2004.” Also on November 24, in response to the I-60 sent to
Woodcroft, Johnson received a response from Nurse Vaughn telling him that the
situation would be addressed, that security would be notified by medical, and
that he would be escorted to the infirmary. On December 6, 2004, Johnson filed
another I-60 request inquiring into the status of Captain Martinez’s
investigation. Johnson never received a response regarding this request. On


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January 7, 2005, Johnson received a response to his letter of November 20 from
the Texas Board of Criminal Justice, Office of the Inspector General,
Investigations Department which informed Johnson that no investigation would
be conducted by that department and that, instead, the complaint would be
forwarded to the Office of Professional Standards, Health Services. Attached to
this response was a notice dated January 3, 2005, which explained that as of
September 1, 2004, the Texas Department of Criminal Justice, Patient Liaison
Program would no longer accept complaints from prisoners and that instead
prisoners are required to use the “Informal Resolution / Complaints Process and
the Offender Grievance mechanism” to address health-related issues. The notice
further explained that “[e]ach facility has an informal complaints process in
place,” and it instructed that resolution of complaints must first be attempted
through the informal process.2 The day after receiving this notice, on January
8, 2005 (48 days after the last date on which the incident occurred), Johnson
filed a step 1 grievance complaining about the insulin incident. The grievance
was returned to him unprocessed with a notation that the grievable time period
had expired.3 On January 11, Johnson submitted another step 1 grievance,
explaining in it the procedures he had previously followed to try to resolve this
issue. This grievance was also returned to him unprocessed stating that the
grievable time period had expired. Finally, on January 16, 2005, Johnson filed
a step 2 grievance, appealing the step 1 grievances. This step 2 grievance was


       2
         This notice comports with the policy set forth in the Texas Department of Criminal
Justice’s Offender Orientation Handbook regarding resolution of inmates’ problems. See TEXAS
DEPARTMENT OF CRIMINAL JUSTICE, OFFENDER ORIENTATION HANDBOOK, at 52 (Nov. 2004),
available at http://www.tdcj.state.tx.us/publications/cid/OffendOrientHbNov04.pdf (last visited
12/18/07).
       3
         In Texas, “[p]risoners are allowed 15 calendar days to file a step 1 grievance.” Wendell
v. Asher, 162 F.3d 887, 891 (5th Cir. 1998) (overruled by implication on other grounds by Jones
v. Bock, ___ U.S. ___, 127 S. Ct. 910, 920–21 (2007)) (citing TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, ADMINISTRATIVE DIRECTIVE No. AD-03.82, Policy para. VI (Jan. 31, 1997)). See also
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, OFFENDER ORIENTATION HANDBOOK, at 52.

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returned to him stating that a step 2 appeal could not be submitted where the
step 1 grievance had been returned as unprocessed.
                                         II.
      The standard of review for the denial of a motion to dismiss for failure to
exhaust administrative remedies is de novo. Johnson v. Johnson, 385 F.3d 503,
515 (5th Cir. 2004) (citing Richardson v. Spurlock, 260 F.3d 495, 499 (5th Cir.
2001)).
                                        III.
                                         A.
      Johnson argued before the district court that the officers, in their official
and individual capacities, violated his rights under the Eighth and Fourteenth
Amendments and requested declaratory relief, compensatory damages, punitive
damages, attorney fees, and any other relief to which he was entitled. The
district court granted the officers’ request for summary judgment regarding the
officers’ sovereign immunity in their official capacities under the Eleventh
Amendment, and it denied the request by defendant officers for summary
judgment on the issues of failure to exhaust administrative remedies and
qualified immunity of the officers in their individual capacities. The defendants
sought certification of the exhaustion of administrative remedies issue pursuant
to 28 U.S.C. § 1292(b). The district court certified the question to this Court, and
we granted leave to appeal.        Thus, the only issue before this Court on
interlocutory appeal is whether Johnson can avoid the exhaustion of
administrative remedies requirement based on a defense of waiver, estoppel, or
equitable tolling.
                                         B.
      According to 42 U.S.C. § 1997e(a): “No 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

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such administrative remedies as are available are exhausted.” 42 U.S.C. §
1997e(a) (1996). The purposes of this exhaustion requirement are to “give an
agency an opportunity to correct its own mistakes with respect to the programs
it administers before it is haled into federal court” and to allow for claim
resolution in proceedings before an agency because it is faster and more
economical than litigation in federal court. Woodford, 126 S. Ct. at 2385
(quoting McCarthy v. Madigan, 503 U.S. 140, 145 (1992)).
      In this Circuit, “a strict approach” is taken to the exhaustion requirement.
Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003). In Texas, an inmate must
follow the two-step grievance process to exhaust administrative remedies.
Johnson, 385 F.3d at 515. However, this Circuit has held that “the exhaustion
requirement ‘may be subject to certain defenses such as waiver, estoppel, or
equitable tolling.’” Days, 322 F.3d at 866 (quoting Wendell, 162 F.3d at 890)
(overruled by implication on other grounds by Jones, 127 S. Ct. at 920–21)); see
also Wright v. Hollingsworth, 260 F.3d 357, 358 n. 2 (5th Cir. 2001). This Court
has also held that a district court must afford a prisoner an opportunity to show
that he has either exhausted the available administrative remedies or that he
should be excused from this requirement. Miller v. Stanmore, 636 F.2d 986, 991
(5th Cir. 1981). We have recognized, as a basis for excuse, circumstances where
administrative remedies are inadequate because prison officials have ignored or
interfered with a prisoner’s pursuit of an administrative remedy. Holloway v.
Gunnell, 685 F.2d 150, 154 (5th Cir. 1982). Further, exhaustion requirements
may be excused where dismissal would be inefficient and would not further the
interests of justice or the purposes of the exhaustion requirement. Underwood
v. Wilson, 151 F.3d 292, 296 (5th Cir. 1998) (overruled by implication on other
grounds by Jones, 127 S. Ct. at 920–21); see also e.g., Days, 322 F.3d at 868
(where prisoner’s broken hand prevented him from filling out and filing a timely
grievance, failure to meet exhaustion requirement was excused).

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       The defendant officers argue that, although this Court has held that the
exhaustion requirement is subject to defenses, this Court has not examined that
holding in light of Woodford, in which the Supreme Court recently held that
“proper exhaustion of administrative remedies is necessary” and that a prisoner
cannot satisfy the exhaustion requirement “by filing an untimely or otherwise
procedurally defective administrative grievance or appeal.” 126 S. Ct. at 2382.
The officers also argue that Johnson’s informal requests did not excuse him from
the requirement that he file his grievance through the two-step grievance
process within fifteen days of the incident. Further, they question whether the
defenses of waiver, estoppel, or equitable tolling can be relied upon at all absent
a showing that [the prisoner] was physically or procedurally prevented from
seeking redress through the prison system’s established grievance procedures.
Johnson agrees that administrative remedies must be exhausted pursuant to 42
U.S.C. § 1997e(a); however, he argues that his informal requests and attempts
to utilize the two-step grievance mechanism excuse him from complying with the
exhaustion requirement. He argues that he was prevented from seeking redress
through the grievance process because he was advised to proceed through
informal resolution and because he was advised by the Warden that the matter
was being investigated.
       The Supreme Court in Woodford held that the exhaustion requirement
requires “proper exhaustion,” meaning that “a prisoner must complete the
administrative review process in accordance with the applicable procedural
rules, including deadlines, as a precondition to bringing suit in federal court.”
Id. at 2387, 2384 (emphasis added).4 In Woodford, the prisoner was placed in
administrative segregation for two months for certain inappropriate acts he

       4
         This holding that exhaustion means “proper exhaustion” is in contrast to the
Respondent’s argument in Woodford that § 1997e(a) means merely that a prisoner “may not
bring suit in federal court until administrative remedies are no longer available.” Woodford,
126 S. Ct. at 2384.

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committed in the prison chapel. Id. at 2383. The prisoner claimed he was
thereafter prohibited from participating in “special programs,” including a
variety of religious activities. Id. Approximately six months later, he filed his
first and only administrative complaint — a grievance with prison officials which
was rejected as untimely because it was not filed within fifteen days of the action
being challenged. Id. at 2383–84. After holding that proper exhaustion was
required, the Court also explained that it was not addressing a situation in
which the prison’s system deliberately devised procedural requirements designed
to “trap” and “defeat [the] claims” of unwary prisoners. Id. at 2392–93.
      In the instant case, Johnson has no basis to excuse the untimely filing of
his step 1 grievance. The Texas Department of Criminal Justice clearly sets out
its grievance policy in its Offender Orientation Handbook:
      An attempt to informally resolve your problem must be made before
      filing a grievance. Informal resolution is defined as any attempt to
      solve the issue at hand and must be noted on the Step 1 grievance
      form (I-127). You have 15 days from the date of the alleged incident
      or occurrence of the issue presented in which to complete the Step 1
      grievance form and forward it to the Unite Grievance Investigator
      (UGI).

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, OFFENDER ORIENTATION HANDBOOK,
a t     5 2       ( N o v .       2 0 0 4 ) ,        a v a i l a b l e         a t
http://www.tdcj.state.tx.us/publications/cid/OffendOrientHbNov04.pdf          (last
visited 12/18/07) (emphasis added). Although Johnson did initially follow the
procedures by attempting to informally resolve his issue before filing a
grievance, his belief that a grievance need not be filed until after a final
resolution of the informal complaint process is unfounded. The Texas policy
specifically requires the grievance be filed within 15 days of the incident, not
within 15 days of the response received to his informal resolution attempt. Id.




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A copy of the handbook setting forth this procedure is provided to offenders upon
entering the Texas Department of Criminal Justice. Id. at v.
       The prison’s policy of requiring the filing of a grievance within 15 days is
not a situation contemplated in Woodford in which the system deliberately
devised procedural requirements designed to “trap” and “defeat [the] claims” of
unwary prisoners. Woodford, 126 S. Ct. at 2392. Furthermore, prison officials
did not ignore or interfere with Johnson’s pursuit of an administrative remedy,
and Johnson does not allege facts to the contrary. See Holloway, 685 F.2d at
154.    Johnson’s argument that he relied on the Warden’s order of an
investigation by Martinez does not serve to excuse his untimely filing of his
grievance in the face of a clear 15-day deadline to file a formal grievance.
Further, there is no basis for excuse from the exhaustion requirement based on
a policy of preventing inefficiency or a failure to further the interests of justice
or the purposes of the exhaustion requirement. See Underwood, 151 F.3d at 296.
The grievance policy set forth by the Texas Department of Criminal Justice is
intended to foster efficiency. By not following the grievance procedure, Johnson
has made this process less efficient. Thus, under the Supreme Court precedent
and our Circuit’s precedent, Johnson has no excuse for failing to exhaust his
administrative remedies. See Days, 322 F.3d at 866; Woodford, 126 S. Ct. at
2385, 2387.
                                        IV.
       Accordingly, the district court’s denial of motion for summary judgment
on the issue of failure to exhaust administrative remedies is REVERSED and
judgment is RENDERED in favor of Appellants.


REVERSED and RENDERED.




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