United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 22, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-20651
Summary Calendar
EMILIO SANCHEZ DURAN
Plaintiff - Appellant
v.
SHERIFF OF HARRIS COUNTY JAIL; D DEBAKER,
Deputy, Individually and in his Official
Capacity; HERMAN HOFFSCHNEIDER, Deputy,
Individually and in his Official Capacity,
Defendants - Appellees
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CV-249
--------------------
Before KING, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Emilio Sanchez Duran, federal prisoner # 83360-079, appeals
the summary-judgment dismissal of his 42 U.S.C. § 1983 action
against Harris County, Texas, Sheriff’s Deputies Hoffschneider
and DeBaker in their individual capacities.
As an initial matter, although the court noted that Duran
had not exhausted his administrative remedies, it declined to
*
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that this opinion should not be published and is not precedent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.
No. 02-20651
-2-
dismiss on that basis because it was unclear whether
administrative remedies remain available and because the
defendants did not raise the issue of exhaustion. Under 42
U.S.C. § 1997e (West Supp. 1998),
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.
"[T]he exhaustion requirement applies to all inmate suits about
prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force or
some other wrong." Porter v. Nussle, 534 U.S. 517, 532 (2002).
Duran was therefore required to exhaust his administrative
remedies because exhaustion is mandatory. See Booth v. Churner,
532 U.S. 731, 739 (2001); Clifford v. Gibbs, 298 F.3d 328, 332
(5th Cir. 2002). On remand, the district court should reconsider
the exhaustion question under 42 U.S.C. § 1997e(a) and determine
what administrative remedies were available to Duran following
the incident and whether he exhausted those remedies before
filing suit, or whether the defendants waived compliance with the
exhaustion requirement by failing to raise it.
Duran argues that the district court erred in granting
summary judgment to Deputies Hoffschneider and DeBaker in their
individual capacities. The district court found that the extent
of Duran’s injury, or at least the lack of any physical signs of
No. 02-20651
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injury, did not “support a finding that Duran was savagely
assaulted in the manner he describes” and did not establish a
genuine issue of whether he suffered a cognizable injury. An
evaluation of the evidence in the light most favorable to Duran
does not support this finding and the district court
impermissibly weighed the evidence in making its determination.
See Union Pac. Res. Group, Inc. v. Rhone-Poulenc, Inc., 247 F.3d
574, 584 (5th Cir. 2001); Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en banc).
There are genuine issues of material fact with regard to
whether Hoffschneider used force that was excessive, whether
DeBaker observed an unconstitutional assault and failed to
intervene to stop it, and whether Duran suffered a cognizable
injury. See Williams v. Bramer, 180 F.3d 699, 703, clarified,
186 F.3d 633, 634 (5th Cir. 1999); Hale v. Townley, 45 F.3d 914,
919 (5th Cir. 1995); Hudson v. McMillian, 962 F.2d 522, 523
(5th Cir. 1992). Accordingly, the summary judgment in favor of
those defendants in their individual capacities is VACATED and
this case is REMANDED for further proceedings.
Duran makes no argument that the district court erred in
granting summary judgment to Hoffschneider and DeBaker in their
official capacities or in dismissing the claims against the
Sheriff. This part of the judgment is AFFIRMED.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.