     Case: 14-10247       Document: 00513001202         Page: 1     Date Filed: 04/10/2015




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                       No. 14-10247                    United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
PAUL CURTIS LEGGETT,                                                      April 10, 2015
                                                                         Lyle W. Cayce
               Plaintiff - Appellant                                          Clerk

v.

OFFICER GLADYS LAFAYETTE,

               Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:13-CV-155


Before JOLLY and DENNIS, Circuit Judges, and RAMOS*, District Judge.
PER CURIAM:**
       Paul Curtis Leggett brought suit pursuant to 42 U.S.C. § 1983 against
various jailers, including Officer Gladys Lafayette. The district court entered
a final order granting partial summary judgment for the defendants as to all
claims except one claim of mail tampering against Lafayette. Leggett did not
appeal from that judgment. Lafayette moved for summary judgment on the
remaining claim, arguing that Leggett failed to exhaust the jail’s


       * District Judge of the Southern District of Texas, sitting by designation.
       ** Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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administrative grievance procedures before filing suit, as required by the
Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a).             Leggett
countered that those procedures were not “available” to him because the jail
failed to timely provide him with a copy of the jail’s inmate handbook, which
described the grievance process.      The district court credited Lafayette’s
evidence that Leggett had in fact received the inmate handbook at booking and
granted summary judgment for Lafayette. For the reasons set out below, we
AFFIRM summary judgment for Lafayette and DENY Leggett’s pending
motion for appointment of counsel.
                               BACKGROUND
      Proceeding pro se and in forma pauperis, Leggett, a former inmate of the
Tarrant County Correctional Center, filed a complaint pursuant to 42 U.S.C.
§ 1983 against three employees of the jail, including Officer Lafayette. In his
complaint, Leggett alleged that Officer Lafayette—the jail’s mail room
officer—opened his mail and removed contents that caused a disruption in his
application for disability benefits with the Veterans Administration (“VA”).
Specifically, Leggett alleged that Officer Lafayette removed a pre-paid
envelope that was enclosed in his mail. Leggett further alleged that other
officers did not allow him to use the copier in the library and were responsible
for his watch and rings disappearing from his prison bin. Leggett sought
compensation for his interrupted disability application and the loss of his
jewelry.
      The district court issued an opinion and order of partial dismissal under
28 U.S.C. § 1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B)(ii). The court determined
that Leggett could proceed with his claim against Officer Lafayette for
disrupting his mail, but concluded that Leggett failed to allege a constitutional
violation against the other officers. Thus, the district court dismissed all of


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Leggett’s § 1983 claims, except for his claim against Officer Lafayette, and
entered a final judgment under Federal Rule of Civil Procedure 54(b) as to the
dismissed claims.
      Officer Lafayette subsequently filed a motion for summary judgment on
the remaining claim, arguing that Leggett had failed to exhaust his
administrative remedies, as required by the PLRA. Although Leggett filed an
initial grievance regarding the removal of the stamped, pre-addressed
envelope, there was no evidence that he made use of the jail’s appeals process
before commencing the instant action. In support of her summary judgment
motion, Lafayette submitted evidence that all inmates receive a copy of the
inmate handbook upon being booked in the jail and that copies of the handbook
are widely available to prisoners in the confinement areas of the jail. The
inmate handbook sets forth the jail grievance process, which includes filing an
initial grievance; appealing the initial grievance to the Grievance Appeal
Board; and then appealing to the sheriff within five days of receiving the
Grievance Appeal Board’s decision. Officer Lafayette also offered evidence
indicating that Leggett had signed a form acknowledging his receipt of the
handbook at booking and subsequently signed other documents that
referenced the handbook.
      In response, Leggett offered his own signed declarations stating that he
did not receive an inmate handbook at the time he was booked into the Tarrant
County Correctional Center. Leggett explained that at the time of his booking,
he was placed on suicide watch, was given only a paper uniform to wear, and
was not given any documents. He thus contended that he should not be held
accountable for failing to exhaust the jail’s administrative remedies.
      The district court rejected Leggett’s claim that he did not receive a copy
of the inmate handbook and was, therefore, unaware that he was required to


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appeal the denial of his initial grievance. The district court thus issued an
order granting Lafayette’s motion for summary judgment.                    Leggett
subsequently filed a motion for appointment of counsel, as well as a timely
notice of appeal.
                                   ANALYSIS
                                        I.
      The district court initially dismissed all of Leggett’s claims except for his
claim against Lafayette based on her interference with his mail. The district
court entered final judgment on those other claims under Federal Rule of Civil
Procedure 54(b) and Leggett did not appeal from that judgment. Although
Leggett reasserts those claims in his brief on appeal, we lack jurisdiction to
consider them now. See, e.g., Meadaa v. K.A.P. Enters., L.L.C., 756 F.3d 875,
879 (5th Cir. 2014) (“A proper Rule 54(b) judgment is a final judgment for all
purposes on the adjudicated claims.” (internal quotation marks omitted)).
                                        II.
      The principal issue on this appeal is whether Lafayette was entitled to
summary judgment because Leggett failed to exhaust administrative remedies
prior to filing suit in federal court. The PLRA states that:
      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 such
      administrative remedies as are available are exhausted.

42 U.S.C. § 1997e(a). Whether administrative remedies were “available” is a
question of law, but the resolution of that question sometimes turns on
questions of fact. Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010). “We
review de novo a district court’s dismissal of a § 1983 suit for failure to exhaust
administrative remedies.” Alexander v. Tippah Cnty., Miss., 351 F.3d 626, 629
(5th Cir. 2003). Here, Leggett offered three signed declarations stating that


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he was not notified of the grievance process until after the limitations period
for appealing his grievance had passed, because the jail did not provide him
with an inmate handbook until approximately a year after he entered the jail.
Leggett’s declarations constitute competent summary-judgment evidence and
the district court erred in failing to credit them. See Ion v. Chevron USA, Inc.,
731 F.3d 379, 382 n.2 (5th Cir. 2013); see also Tolan v. Cotton, 134 S. Ct. 1861,
1866 (2014) (per curiam). Thus, the district court erred when it concluded that
Leggett had failed to create a fact dispute regarding the timing of his receipt
of the inmate handbook. That fact dispute is immaterial, however, if it does
not excuse Leggett’s failure to exhaust administrative remedies. See Dillon,
596 F.3d at 268.
      The issue is whether the jail staff’s failure to provide Leggett with an
inmate handbook at the relevant time rendered the jail’s administrative
grievance procedures “unavailable,” thereby excusing Leggett’s failure to
exhaust them. See id. The best case favoring Leggett’s position is Dillon v.
Rogers. There, Dillon was transferred to a temporary jail following Hurricane
Katrina. Id. at 265. Dillon was allegedly beaten and mistreated by guards at
the temporary facility, resulting in hearing loss and other injuries. Id. Dillon
later filed suit under § 1983, alleging civil rights violations, but the district
court granted the defendants’ motion to dismiss because Dillon had failed to
exhaust administrative remedies. Id. On appeal, Dillon explained that he did
not file a grievance once he had been transferred to a permanent facility
because he was told by a corrections officer and inmate counsel that he could
not file a grievance for abuse that he suffered at a different facility. Id. at 267.
The Dillon court noted that this circuit adheres to a “strict” approach to the
exhaustion requirement, refusing to accept mere “substantial compliance” with
administrative procedures, but also stated that we had “long recognized the


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importance of ensuring that inmates have avenues for discovering the
procedural rules governing their grievances.” Id. at 268. We sent the case
back to the district court for discovery after concluding that we could not
“determine whether administrative remedies were ‘available’ for Dillon”
because there was no evidence as to what Dillon knew or could have discovered
about the grievance process, what the process entailed (the record did not
contain a copy of the inmate handbook), or whether “emergency procedures”
suspending consideration of grievances from transferred inmates were in force
at the relevant time. Id. at 267, 269.
      Like in Dillon, the record in this case does not conclusively establish
what Leggett knew about the administrative grievance procedures. Unlike in
Dillon, however, the key portions of the inmate handbook are contained in the
record and the uncontested evidence indicates that copies of the handbook were
readily available to inmates in the confinement areas of the jail (to which
Leggett had access). Furthermore, there is no suggestion that anyone ever
misled Leggett about the grievance process or attempted to dissuade him from
making use of it. The summary-judgment evidence establishes that Leggett
had “avenues for discovering the procedural rules governing [his] grievances.”
Id. at 268. Thus, even if Leggett was subjectively unaware of the procedures,
the record sets out the substance of those procedures and indicates that the
information was available to Leggett.
      Several of our unpublished cases also indicate that although Leggett did
not receive a copy of the inmate handbook at booking, that fact did not render
the jail’s administrative grievance procedures unavailable. In Manemann v.
Garrett, for example, we concluded that the plaintiff prisoner was unaware of
the jail’s grievance policy but affirmed the district court’s dismissal for failure
to exhaust because the record indicated that the jail had a grievance policy and


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there was no evidence that the plaintiff “ever asked for information about filing
a grievance and was refused such information or was given incorrect
information.” 484 F. App’x 857, 858 (5th Cir. 2012); see also Huff v. Neal, 555
F. App’x 289, 296 n.6 (5th Cir. 2014) (concluding that grievance procedures
were available where inmate “could have discovered” deadline for filing a
formal complaint); Gonzalez v. Crawford, 419 F. App’x 522, 523 (5th Cir. 2011)
(“[Plaintiff prisoner’s] alleged ignorance of the exhaustion requirement, or the
fact that he might have misconstrued the language in the handbook, does not
excuse his failure to exhaust.”); Palermo v. Miller, 196 F. App’x 234, 235 (5th
Cir. 2006) (upholding dismissal of prisoner’s § 1983 claim for failure to exhaust
where prisoner mistakenly believed it was unnecessary to file a Step 2
grievance).
      Even if Leggett was not informed of the relevant grievance procedure,
uncontested record evidence indicates that a specific grievance procedure was
in place at the time, its contours were knowable, and no one attempted to
dissuade Leggett from using it. As a result, although the district court erred
in rejecting Leggett’s evidence that he did not receive an inmate handbook at
booking, summary judgment for Lafayette was nevertheless appropriate. See
Vuncannon v. United States, 711 F.3d 536, 538 (5th Cir. 2013) (“We are not
limited to the district court’s reasons for its grant of summary judgment and
may affirm the district court’s judgment on any grounds supported by the
record.” (quotation marks omitted)).
                                       III.
      Leggett briefly argues that the district court failed to respond to his
“motion to amend judgment,” in which he noted deficiencies in some of
Lafayette’s summary-judgment evidence. The district court struck Leggett’s
motion because it did not include a completed certificate of service as required


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by Federal Rule of Civil Procedure 5(d), or a certificate of conference or
inability to confer as required by local rules. We have previously affirmed a
district court’s decision to strike a motion for failure to include a certificate of
service. See Victor F. v. Pasadena Indep. Sch. Dist., 793 F.2d 633, 635 (5th Cir.
1986). The district court did not abuse its discretion by striking Leggett’s
motion for that reason here. See United States v. Jett, 48 F.3d 530 at *1 (5th
Cir. 1995) (unpublished).
                                        IV.
      Lastly, we consider Leggett’s pending motion for appointment of counsel
in the instant appeal. Appointment of counsel in a § 1983 case is warranted if
the case presents “exceptional circumstances.” Freeze v. Griffith, 849 F.2d 172,
175 (5th Cir. 1988). This case turns on a straightforward application of the
PLRA’s exhaustion requirement. The district court did not abuse its discretion
in denying Leggett’s requests for counsel and we will not appoint counsel now.
See id.
                                 CONCLUSION
      For these reasons, we AFFIRM the district court’s grant of summary
judgment and DENY Leggett’s renewed motion for appointment of counsel.




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