Robert Watson v. Dwayne Hughes

Case: 11-40049 Document: 00511578513 Page: 1 Date Filed: 08/22/2011

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

FILED
August 22, 2011
No. 11-40049
Summary Calendar Lyle W. Cayce
Clerk

ROBERT WAYNE WATSON,

Plaintiff-Appellant,

versus

DWAYNE HUGHES, Industrial Specialist;
JIMMY A. HUTCHERSON, Garment Factory Supervisor;
MICHAEL W. CAMPBELL, Garment Factory Plant Manager;
PAULA R. JONES, Law Librarian,

Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:09-CV-172

Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-40049 Document: 00511578513 Page: 2 Date Filed: 08/22/2011

No. 11-40049

Robert Watson, Texas prisoner # 365712, filed a 42 U.S.C. § 1983 com-
plaint alleging violations of the First and Eighth Amendments regarding an
assault at the prison. The district court granted summary judgment on the basis
that Watson failed to exhaust his administrative remedies. Watson argues that
he exhausted them in accordance with the grievance procedures of the Texas
Department of Criminal Justice (“TDCJ”) that require inmates to try informal
resolution before filing a Step 1 grievance.
Watson asserts that on the day of the assault, he sent an informal letter
to the Office of Inspector General and prison officials regarding the assault. He
contends that he should not be penalized by the fact that the informal investiga-
tion did was not completed until the fifteen-day time limit for filing a formal
grievance had expired. He also suggests that he was prevented from using the
formal grievance forms because he was told they were unavailable.
This court reviews a summary judgment de novo. Dillon v. Rogers, 596
F.3d 260, 266 (5th Cir. 2010). Under 42 U.S.C. § 1997e(a), “[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.” The
TDCJ has developed a two-step grievance process. Johnson v. Johnson, 385 F.3d
503, 515 (2004). “[T]his Court has taken a strict approach to the exhaustion
requirement.” Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003), overruled by
implication on other grounds by Jones v. Bock, 549 U.S. 199, 214-15 (2007).
Thus, a grievance must be pursued through both steps of the TDCJ system
before it can be considered exhausted. Johnson, 385 F.3d at 515.
There is no basis to excuse Watson’s failure to follow TDCJ’s two-step
grievance procedure. Watson’s belief that he had to wait until the informal
investigation concluded before he could file a Step 1 grievance is unfounded.
Furthermore, his argument that he should be excused from the exhaustion
requirement because he was told grievance forms were unavailable is also

2
Case: 11-40049 Document: 00511578513 Page: 3 Date Filed: 08/22/2011

No. 11-40049

unavailing: He does not contend that grievance forms were unavailable for the
remaining fourteen days of the period for submitting a Step 1 grievance.
Because he failed properly to exhaust, summary judgment was proper. See
Woodford v. Ngo, 548 U.S. 81, 83-84 (2006); Johnson, 385 F.3d at 515.
Watson also contends that the two-step procedure is unconstitutional
because it requires an inmate to attempt to try to resolve a problem informally
before filing a formal grievance. Watson asserts that “[p]rison officials mostly
always wait days after the filing period to file a grievance has expired before
responding to an inmate’s attempt at resolution, therefore denying inmates
access to grieve a legal issue.” Watson’s argument is unavailing, because it is
based on a misinterpretation of the TDCJ grievance procedure. See Johnson v.
Ford, 261 F. App’x 752, 756 (5th Cir. 2008).
AFFIRMED.