     Case: 17-50951      Document: 00514993420         Page: 1    Date Filed: 06/12/2019




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

                                      No. 17-50951                         FILED
                                                                       June 12, 2019
                                                                      Lyle W. Cayce
CARLTON E. BRANTNER,                                                       Clerk

              Plaintiff - Appellant

v.

FREESTONE COUNTY SHERIFFS OFFICE; SHERIFF DON ANDERSON;
LIEUTENANT JIMMY MCADAMS, JR.; CORPORAL DON DUNN;
CORRECTIONAL OFFICER BEN BARLOW; MUNICIPALITY OF
FREESTONE COUNTY; SERGEANT WADE HARRISON,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:16-CV-351


Before HAYNES, GRAVES, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Citing 42 U.S.C. § 1983, Carlton Brantner has sued the jail previously
holding him for injuries he suffered after three attacks by other inmates. On
appeal, Brantner briefed issues relating only to two of the attacks. The only
issue relevant to this appeal is whether he is barred from pursuing his claims


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-50951
for failing to exhaust them through prison grievance procedures. We conclude
he has identified a genuine issue of material fact that precludes summary
judgment on that point. We thus REVERSE the district court’s judgment and
remand for further proceedings; further rulings are contained below.
                                I.    Background
      Brantner sued the jail after, allegedly, other inmates attacked him and
the jail delayed necessary medical care.   He avers he was attacked three
different times. After the first attack, Brantner waited two days—so he could
avoid being overheard by other inmates—to tell a jail supervisor about the
assault. He reported the assault to Corporal Don Dunn and requested a form
to report the assault; Dunn photographed Brantner’s injuries and told
Brantner to “lay low and he would get the forms (grievance and statement)
when he could.” Brantner “tried to keep his distance and wait for [Dunn] to
get the forms to [him].” He says that he never received the grievance forms.
      The second attack occurred less than a week later. After the assault,
Brantner pushed the emergency intercom button and told another jail official,
Officer Barlow, that he had been assaulted and needed help.             Barlow
investigated the assault and reprimanded Brantner for using the intercom.
      Brantner did not see a supervisor until the next day when he saw Dunn.
Brantner asked Dunn why he had not been moved and told Dunn that he still
“needed the grievance and forms to make two statements for two assaults.”
Dunn asked Brantner about his injuries and again told him to “lie low.” Dunn
told Brantner that he would get Brantner the forms “when he could.”
      Days later, Brantner sent Dunn “an ‘inmate request form . . . reminding
him about the forms to make statements.” Either later that evening or the
next, Dunn called Brantner out to the office area and gave him an envelope
addressed to Brantner from his attorney, which actually had two “statement
forms but no grievance form in it.”
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      Brantner was attacked a third time the following week, this time with
worse injuries. He had a fractured eye-socket, deep chest contusions, and a cut
from eyebrow to ear. Brantner was examined at a local hospital, where the
emergency room doctor instructed staff at the jail to obtain surgery for
Brantner as soon as possible. Although surgery was allegedly available within
days, the jail administrator waited until nearly three weeks later to schedule
Brantner’s surgery.      Because of the delay, Brantner’s fracture healed
improperly, and additional surgery was required. Brantner sued alleging that
the jail and its official violated his rights under the Fourteenth Amendment.
      The defendants moved for summary judgment, arguing that Brantner
failed to follow the jail’s procedures to file a grievance, as the Prison Litigation
Reform Act requires. See 42 U.S.C. § 1997e(a).
      The defendants argued that the jail’s procedures were set out in three
documents. First, a document that we call the County Jail Rules informed
inmates that “[a] grievance form is available to inmates. The form will be made
available on request, and instructions will be given on the procedures for filing
a grievance.” Second, a document entitled the “Texas Commission on Jail
Standards,” which we call “the Grievance Plan,” told inmates they should file
grievances “in the form of a written statement or a completed grievance form
within three (3) days of the incident.” Third, a page purportedly from the
Inmate Rules Handbook for Freestone County Jail advised inmates that to file
a grievance, they must “send a written statement directly to the Jail
Administrator (Lieutenant) in a sealed envelope within 3 days of the incident.”
It further directed, “The grievance must state the time, date and names of
persons and/or staff members involved, and the pertinent details of the
incident, including the names of any witnesses.” The defendants contended
that when Brantner was booked into the Jail, he was given the County Jail


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                                 No. 17-50951
Rules and the Inmate Rules Handbook, which, they maintained, “included an
explanation of the Jail’s grievance procedure and its requirements.”
      The defendants argued that Brantner knew about these rules and failed
to follow them.      To prove he had not submitted a grievance form, they
submitted an affidavit stating so. To prove he knew about the rules, they made
two independent arguments.        One was that Brantner had submitted a
grievance form for an unrelated incident weeks after the attacks, which they
argued showed he knew of the grievance process rules and had access to forms.
The other argument was that Brantner would have received the Inmate Rules
Handbook upon entering the jail. Last, they argued that although Brantner
claimed that no grievance forms were available, the summary judgment
evidence showed that there was no requirement that a grievance be submitted
on a particular form.
      Brantner responded that the existence of the Jail’s grievance policy was
not at issue. Instead, he argued that the Jail had not given him access to the
grievance policy, so he could not have followed it. He averred that the only
knowledge he had of the grievance policy was that outlined in the County Jail
Rules, which mentions only that prisoners can submit a grievance form.
Brantner challenged the defendants’ assertion that inmates were provided the
Inmate Rules Handbook when entering the Jail, arguing that the Jail required
inmates to sign or initial “everything they are informed” of and that they had
provided no documentation showing that Brantner or any other inmate had
received the Handbook. Brantner also challenged the authenticity of the single
page that the defendants had represented was from the Freestone County
Jail’s Handbook, asserting that the page had actually come from the Limestone




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                                      No. 17-50951
County Jail Inmate Rules, as reflected by the handwriting on the document,
crossing out “Lime” and writing “Free” above it. 1
       Brantner repeated these assertions in a verified reply to the defendants’
motion for summary judgment, arguing that he never received any information
about what type of remedies the limited plan in the County Jail Rules provided.
He also contended that his use of a grievance form on January 6, 2015, to
complain about his medication did not confirm he had “any understanding
beyond minor complaints.” Brantner later supplied the declaration of Robert
Keathley. Keathley attested that he was incarcerated at the Jail between
December 5, 2014, and January 7, 2015, and was acquainted with Brantner.
Keathley stated that during his incarceration he never received an inmate rule
handbook or any other documents explaining the jail rules or grievance
procedures; nor did he recall ever knowing any other inmate who did.
       The district court granted the defendants’ motion for summary judgment
based on Brantner’s failure to exhaust his administrative remedies.                    The
district court concluded that Brantner admitted that he was aware of the Jail’s
grievance procedure and had used it to complain about his medication schedule
on January 6, 2015. Brantner timely appealed.
                            II.   Standard of Review
       Summary judgment is appropriate if “there is no genuine dispute as to
any material fact” and if a party demonstrates it is “entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a). We “construe all facts and inferences in
the light most favorable to the nonmoving party when reviewing grants of
motions for summary judgment.” Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir.



       1 The page the defendants submitted does not have the handwriting to which Brantner
refers. After Brantner filed this appeal, he moved for reconsideration in the district court
and attached a copy of a page that reflects what he describes. We find it is properly before
us, but it is not essential to the outcome here.
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                                          No. 17-50951
2010) (quoting Murray v. Earle, 405 F.3d 278, 284 (5th Cir. 2005)). Whether
administrative remedies were “available” is a question of law, but the
resolution of that question sometimes turns on questions of fact. Id. Because
exhaustion is an affirmative defense, the defendants have the burden of
demonstrating that Brantner failed to exhaust. See id. “If the moving party
meets the initial burden of showing there is no genuine issue of material fact,
the burden shifts to the nonmoving party to produce evidence or designate
specific facts showing the existence of a genuine issue for trial.” Gowesky v.
Singing River Hosp. Sys., 321 F.3d 503, 507 (5th Cir. 2003) (quoting Allen v.
Rapides Parish Sch. Bd., 204 F.3d 619, 621 (5th Cir. 2000)).
                                   III.    Discussion
       Brantner argues that the district court erred when it granted the
defendants’ motion for summary judgment based on his failure to exhaust his
administrative remedies. Before addressing those arguments, we note that
Brantner has challenged that conclusion only with respect to the first two
assaults. He has not briefed whether he exhausted his remedies with respect
to the third assault and delayed medical care after the assault. Although pro
se briefs are afforded liberal construction, even pro se litigants must brief
arguments to preserve them. Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir.
1993). Brantner has therefore abandoned those arguments for purposes of
appeal. Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987). 2 We thus focus on just the first two assaults.



       2Brantner also argues that the district court erred in failing to grant his motion for
reconsideration under Federal Rule of Civil Procedure 59(e). Brantner timely filed a notice
of appeal of the order granting summary judgment and then filed the Rule 59(e) motion a
couple weeks later. The district court denied it the next day. Brantner never appealed that
order.
       We cannot consider Brantner’s arguments about his Rule 59(e) motion. Under 28
U.S.C. § 2107(a), “no appeal shall bring any judgment, order or decree in an action, suit or
proceeding of a civil nature before a court of appeals for review unless notice of appeal is filed,
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                                       No. 17-50951
       Under the PLRA, “[n]o 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);
see also Dillon, 596 F.3d at 265–66 (applying PLRA in pretrial detainee’s
appeal from summary judgment based on his failure to exhaust). Prisoners
“must not just substantially comply with the prison’s grievance procedures, but
instead must ‘exhaust available remedies properly.’” Cowart v. Erwin, 837
F.3d 444, 451 (5th Cir. 2016) (quoting Wilson v. Epps, 776 F.3d 296, 299 (5th
Cir. 2015)).
       Here, Brantner has acknowledged that he did not exhaust his
administrative remedies with respect to the first two assaults, but argues that
his suit should proceed because administrative remedies were unavailable to
him.     A prisoner is not required to exhaust remedies if remedies are
unavailable. Ross v. Blake, 136 S. Ct. 1850, 1855–59 (2016). An administrative
remedy may be unavailable if (1) despite what regulations or materials may
promise, prison officials are “unable or consistently unwilling to provide any
relief to aggrieved inmates,” (2) “an administrative scheme [is] so opaque that
it becomes, practically speaking, incapable of use” by an ordinary prisoner, or



within thirty days after the entry of such judgment, order or decree.” See also Fed. R. App.
P. 4(a)(B)(ii) (requiring that a party challenging the ruling on a Rule 59(e) motion “must file
a notice of appeal, or an amended notice of appeal” within the relevant time limits). Brantner
has not filed a notice of appeal of the order denying his Rule 59(e) motion, nor has he amended
his initial notice of appeal. Brantner did brief the issue, though, which we have sometimes
construed as the equivalent of filing a notice of appeal; but even when we construe the brief
to be a notice of appeal, it must still be filed within the statutorily imposed time limits. See
Funk v. Stryker Corp., 631 F.3d 777, 781 (5th Cir. 2011). Brantner’s brief in this court was
filed well after the statutorily imposed time limit to appeal the denial of his motion for
reconsideration. We thus lack appellate jurisdiction over the district court’s order denying
Brantner’s Rule 59(e) motion. Id.; see also Hamer v. Neighborhood Hous. Servs. of Chi., 138
S. Ct. 13 (2017) (distinguishing between jurisdictional rules embodied in statutes and
mandatory claims processing rules embodied in rules of procedure).
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                                 No. 17-50951
(3) prison administrators “thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or intimidation.”
Id. at 1859–60. As we have written, “Grievance procedures are unavailable to
an inmate if the correctional facility’s staff misled the inmate as to the
existence or rules of the grievance process so as to cause the inmate to fail to
exhaust such process.” Davis v. Fernandez, 798 F.3d 290, 295 (5th Cir. 2015).
      The defendants assert that Brantner reasonably could have learned
about the grievance procedures, and they were thus not unavailable to him.
According to the defendants, the Jail’s grievance procedure consisted of the
County Jail Rules, the Handbook, and the Plan. They contend that the County
Jail Rules were given to Brantner upon being booked into the Jail and that
“[t]his document discusses the Jail’s grievance procedure and gives
instructions to inmates regarding grievance forms and procedures.”         They
assert that Brantner “acknowledged the existence of this grievance procedure”
when being booked in to the jail. The defendants have also asserted that
Brantner “would have” received the Inmate Rules Handbook upon being
booked into the jail.
      But Brantner has identified a genuine issue of material fact on those
points. He has presented evidence that he never received the Inmate Rules
Handbook. Though he concedes he received the County Jail Rules, he is correct
that those Rules say only that grievance forms were available if an inmate
requested them and that instructions “would be provided.”        Brantner has
offered competent summary judgment evidence reflecting that after the first
two assaults, he requested grievance forms but never received them or any
further instruction about deadlines or content necessary to file a grievance.
      This evidence, if believed, satisfies the unavailability exception to
exhaustion. Here, Brantner was “thwart[ed]” from using prison processes
because he was supplied with documents that only partially explained the
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                                  No. 17-50951
prison processes. Ross, 136 S. Ct. at 1859–60. When Brantner tried to follow
those    processes,   he   was   again   “thwart[ed]”   by    a   prison   official’s
“misrepresent[ation]” that he would be given a grievance form. Id. Thus, when
the evidence is viewed in the light most favorable to Brantner, he was excused
from exhausting prison procedures.
        This case is unlike Manemann v. Garrett, where a prisoner was unaware
of prison procedures and failed to exhaust. See 484 F. App’x 857, 858 (5th Cir.
2012) (per curiam). There, the prisoner had not presented any evidence that
he had “ever asked for information about filing a grievance and was refused
such information or was given incorrect information.” Id.; see also Huff v. Neal,
555 F. App’x 289, 296 n.6 (5th Cir. 2014) (per curiam) (concluding that
grievance procedures were available where inmate “could have discovered”
deadline for filing a formal complaint (quoting Dillon, 596 F.3d at 269)). Here,
Brantner was given incomplete information and told he would get the forms he
thought he needed to file.
        The defendants also argue that they presented evidence that Brantner
actually knew about the grievance procedures and had access to a grievance
form.    To support that argument, they presented a grievance form that
Brantner submitted complaining he was being denied his medication. But that
form was submitted weeks after the exhaustion deadline for the first two
attacks that are the subject of this appeal. Viewing that evidence in the light
most favorable to Brantner, a jury could reasonably conclude that he received
a form after the exhaustion period had already expired. Thus, the grievance
procedures still could have been unknown and unavailable to Brantner at the
relevant times for his claims regarding the first two attacks.
        Though the defendants moved for summary judgment on other grounds
below, they have not urged us to affirm on those grounds here. Consequently,
we decline to address them in the first instance here and leave them for
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                                 No. 17-50951
consideration by the district court. We thus reverse the district court’s order
dismissing the case as it applies to the first two assaults and remand for
proceedings consistent with this opinion.
      Brantner raises two other issues. First, in his opening brief, Brantner
requests that “his motion to appoint counsel be granted.” To the extent he is
seeking counsel before this court, we deny the request as moot. However, this
request appears directed to the motion for appointment of counsel that he filed
in the district court. The district court applied the factors for appointment of
counsel that we set out in Ulmer v. Chancellor, 691 F.2d 209, 212–13 (5th Cir.
1982), and determined that at that stage of the proceedings, Brantner had not
established that the issues were too complex or that he was incapable of
bringing them. Given that we have reversed and remanded the district court’s
judgment as to the first two assaults, the district court’s conclusion that the
exhaustion issue was “simple” “deserve[s] another look by the district court on
remand and, specifically, consideration should be given to the appointment of
pro bono counsel on remand.” Delaughter v. Woodall, 909 F.3d 130, 141 (5th
Cir. 2018). Thus, we vacate that ruling and remand for reconsideration in light
of this opinion without opining further on whether the motion to appoint
counsel in the district court should be granted.
      Brantner also requests that we sanction one of the defendants and his
attorney because he believes they defrauded the court. Brantner cites only the
disputed evidence about the Inmate Rules Handbook to support his request.
His request for sanctions is thus based solely on a disputed fact in the case,
which we cannot resolve on appeal. Based on what Brantner has presented at
this time, sanctions are inappropriate.
      In sum, we REVERSE and REMAND as to the first two assaults for
proceedings consistent with this opinion; VACATE and REMAND as to the


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                               No. 17-50951
motion to appoint counsel in the district court; and AFFIRM the remainder of
the judgment. Motions before this court are DENIED.




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