     Case: 17-20619      Document: 00514828346         Page: 1    Date Filed: 02/08/2019




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

                                                                                   FILED
                                    No. 17-20619                            February 8, 2019
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
ALEXANDER BALDOMINO,

                                                 Plaintiff-Appellant

v.

WILLIAM STEPHENS; OFFICER GONZALES; OFFICER RAPHER; THE
ATTORNEY GENERAL OF TEXAS; LINDA RATHMAN,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:13-CV-3683


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Alexander Baldomino, Texas prisoner # 1384749, appeals the dismissal
of his 42 U.S.C. § 1983 complaint in which he alleged that correctional officers
in his prison unit failed to protect him from an attack by another inmate and
that the then Texas Department of Criminal Justice, Criminal Institutions
Division Director Williams Stephens did not adequately supervise the officers.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-20619

He also argued that he was denied sufficient medical care for the injuries that
he sustained in the attack and that officers lost his personal property while he
was being transferred to a medical facility.
      The district court dismissed the claims against Stephens with prejudice
for failure to state a claim upon which relief can be granted. The district court
found that Stephens was not personally involved in any alleged constitutional
violation and could not be responsible based on a theory of supervisory liability.
The district court dismissed the claims as to Officer Rapher without prejudice
for failure to effect service of process. The remaining defendants were granted
summary judgment on the basis that Baldomino did not properly exhaust his
administrative remedies. The district court ordered that the § 1983 complaint
be dismissed with prejudice.
      On appeal, Baldomino does not challenge the district court’s conclusions
that his claims against Stephens did not state a claim upon which relief can be
granted and that his allegations as to Officer Rapher were subject to dismissal
without prejudice for failure to effect service of process. Therefore, Baldomino
has abandoned any such arguments. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      Baldomino does contest the district court’s determination that he did not
properly exhaust his administrative remedies. He maintains that he filed the
grievances required to complete the grievance process, but the grievances were
misplaced, improperly reviewed, or not processed. We review the dismissal for
failure to exhaust administrative remedies de novo. See Dillon v. Rogers,
596 F.3d 260, 273 (5th Cir. 2010).
      The competent summary judgment evidence, which Baldomino failed to
rebut, supported that Baldomino did not file a step-two grievance – as required
by the process in place in the Texas prison system – and, thus, did not properly



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                                 No. 17-20619

exhaust his administrative remedies. See Johnson v. Johnson, 385 F.3d 503,
515 (5th Cir. 2004); Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001).
His conclusory contention that his grievances were misplaced or ignored does
not refute the absence of evidence that he filed a step-two grievance and fails
to establish a genuine factual issue for trial. See Duffie v. United States,
600 F.3d 362, 371 (5th Cir. 2010); FED. R. CIV. P. 56(a), (c). His claim that he
could not properly exhaust his remedies because a first-step grievance was
returned as unprocessed is unavailing. That grievance, which did not comply
with the procedural rules and could not be used to satisfy the exhaustion
requirement, Woodford v. Ngo, 548 U.S. 81, 83-84 (2006), was ultimately
processed under a different grievance number after Baldomino’s allegations
were determined to merit an investigation. After he received a response to the
grievance, he failed to follow the grievance process to its conclusion. He has
not contended that he was unfamiliar with the process or did not receive an
offender handbook, which detailed the process. Thus, the district court did not
err in concluding that his claims were not exhausted and that the defendants
were entitled to summary judgment. See Dillon, 596 F.3d at 265; FED. R. CIV.
P. 56(a).
      Therefore, the judgment of the district court is AFFIRMED. Baldomino’s
motion for leave to attach documents to his brief is DENIED.




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