     Case: 13-41058      Document: 00512749538         Page: 1    Date Filed: 08/28/2014




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

                                    No. 13-41058                                FILED
                                  Summary Calendar                        August 28, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
TERESA FLORES,

                                                 Plaintiff-Appellant

v.

HARRY LAPPIN, Director, Federal Bureau of Prisons; T. C. OUTLAW,
Warden, FCI - Forrest City; DARRELL PERKINS, also known as Unknown
Perkins; JOHN FOX, Warden, USP Beaumont; UNKNOWN ODEN, Officer,
USP Beaumont; UNKNOWN MORALES, Officer, USP Beaumont; DOES, 2
Unknown Maintenance Officers and 4 John Doe Correctional Officers, USP
Beaumont; UNITED STATES BUREAU OF PRISONS,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:08-CV-202


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Teresa Flores appeals the district court’s grant of summary judgment for
the defendants on the grounds that Hector Flores, the original plaintiff in this



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-41058

case, 1 failed to exhaust his administrative remedies in this civil rights action
under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971). She argues that the district court abused its discretion in
granting summary judgment based on the failure to exhaust administrative
remedies.     She contends that Hector Flores was prevented from properly
exhausting his administrative remedies because of a delay in the delivery of
the warden’s response to him until after 20 days had passed.
       We review de novo a grant of summary judgment, applying the same
standard as the district court. Nickell v. Beau View of Biloxi, L.L.C., 636 F.3d
752, 754 (5th Cir. 2011). “The [district] court shall grant summary judgment
if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” FED. R. CIV.
P. 56(a).
       Prior to bringing suit, a prisoner must exhaust all available
administrative remedies. See 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 such administrative remedies as are available are exhausted.”).
This requirement applies to Bivens actions. Porter v. Nussle, 534 U.S. 516, 524
(2002). “[T]he PLRA exhaustion requirement requires proper exhaustion.”
Woodford v. Ngo, 548 U.S. 81, 93 (2006). That is, “prisoners must complete the
administrative review process in accordance with the applicable procedural
rules—rules that are defined not by the PLRA, but by the prison grievance
process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (internal citation and
quotation marks omitted). We take “a strict approach” to the exhaustion



       1Hector Flores died in 2009, and Teresa Flores, as his next of kin, was substituted as
the proper party.


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                                 No. 13-41058

requirement. Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003), overruled by
implication on other grounds by Jones, 549 U.S. at 216. Under this strict
approach, ‟ mere ‛substantial compliance’ with administrative remedy
procedures does not satisfy exhaustion”; instead, prisoners must exhaust
available remedies properly. Dillon v. Rogers, 596 F.3d 260, 268 (5th Cir.
2010). “Proper exhaustion demands compliance with an agency’s deadlines
and other critical procedural rules.” Woodford, 548 U.S. at 90. We review the
district court’s legal rulings concerning exhaustion de novo and its factual
findings for clear error. Dillon, 596 F.3d at 273.
      Hector Flores did not file a timely appeal of the warden’s decision to the
regional director. The warden was given an extension of time to respond to
Hector Flores’s administrative remedy request until November 24, 2007, but
the warden did not respond until December 11, 2007. Hector Flores filed his
regional appeal on January 21, 2008, beyond the 20-day period, and his appeal
was rejected as untimely.
      As the district court correctly noted, even if a response to Hector Flores’s
administrative remedy request was delayed, the regulations of the Bureau of
Prisons provide authority for inmates who do not receive timely responses to
administrative remedy submissions to pursue their appeals. “If the inmate
does not receive a response within the time allotted for reply, including
extension, the inmate may consider the absence of a response to be a denial at
that level.” 28 C.F.R. § 542.18. Hector Flores could have filed his appeal within
20 days of November 24, 2007. He could also have included an explanation for
the delay in his appeals to the regional and central office, which he did not do.
BOP regulations provide for an extension of filing times if an inmate can
demonstrate a valid reason for the delay. See 28 C.F.R. § 542.14(b).




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                                No. 13-41058

      Accordingly, the district court did not err by ruling that Hector Flores
had not exhausted his administrative remedies. Dillon, 596 F.3d at 273.
      Teresa Flores argues that failure to exhaust is an affirmative defense
and that inmates are not required to specially plead or demonstrate exhaustion
in their complaints. The defendants raised the affirmative defense of failure
to exhaust in their answer and motion for summary judgment. Teresa Flores
also argues that exhaustion should not be required when the original plaintiff
was not at fault and exhaustion would be futile because he is now deceased.
Teresa Flores does not explain why it would have been futile for Hector Flores
to exhaust his administrative remedies before he filed this lawsuit in 2008.
      AFFIRMED.




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