United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS February 17, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40765
Summary Calendar
MICHAEL J. AUSTIN,
Plaintiff-Appellant,
versus
K. WARD, etc., Et Al,
Defendants,
MICHAEL STARKEY, Assistant Warden;
CLIFTON WARNER, Captain; ELAINA G. FIELD,
Substitute Counsel; KEVIN MAYFIELD,
Lieutenant; CHARLES LIGHTFOOT, Major;
JOHNNY L. WRIGHT, Officer; CARROLL D.
RUSSELL, Officer;
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:01-CV-349
--------------------
Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Michael J. Austin (“Austin”), Texas prisoner #661366, appeals
the magistrate judge’s grant of summary judgment to the defendants
in his 42 U.S.C. § 1983 civil rights action. Austin contends that
*
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that this opinion should not be published and is not precedent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. 03-40765
-2-
the magistrate judge erred in finding that his deliberate
indifference and excessive use of force claims against Charles
Lightfoot (“Lightfoot”), Johnny L. Wright (“Wright”), and Carroll
D. Russell (“Russell”) were barred by 42 U.S.C. § 1997e(a) because
he failed to exhaust his administrative remedies regarding those
claims. Austin asserts that there were disputed factual issues
regarding his exhaustion of administrative remedies, that his
failure to exhaust should have been excused because he made
substantial efforts to exhaust but was prevented from exhausting
his administrative remedies by prison officials, and that
Lightfoot, Wright, and Russell waived the exhaustion requirement by
waiting too long to raise the issue.
Austin argues that the magistrate judge erroneously granted
summary judgment to Kevin Mayfield (“Mayfield”), Michael Starkey
(“Starkey”), and Clifton Warner (“Warner”) on his due process
claims because those defendants violated his due process rights by
forfeiting $1,200 from his prison trust account without legal
authority. Austin additionally maintains that (1) summary judgment
was improper because the defendants had not responded to his
pending discovery request, (2) he was entitled to sue the
defendants in their individual capacities, and (3) the defendants
were not entitled to qualified immunity.
We review the magistrate judge’s grant of summary judgment de
novo. See Whittaker v. BellSouth Telecomm., Inc., 206 F.3d 532,
534 (5th Cir. 2000). Summary judgment is proper where the
No. 03-40765
-3-
pleadings and summary judgment evidence present no genuine issue of
material fact and the moving party is entitled to a judgment as a
matter of law. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). If the moving party meets its initial
burden of showing that there is no genuine issue of material fact,
the burden shifts to the nonmovant to set forth specific facts
showing the existence of a genuine issue for trial. See FED. R.
CIV. P. 56(e). We review a denial of discovery prior to the grant
of summary judgment for abuse of discretion and will affirm such a
decision unless it is arbitrary or clearly unreasonable. Moore v.
Willis Indep. Sch. Dist., 233 F.3d 871, 876 (5th Cir. 2000).
Austin’s arguments are without merit. “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 (2003). Defendants presented summary judgment evidence
showing that Austin had not filed a grievance regarding his claims
against Lightfoot, Wright, and Russel, and the magistrate judge
correctly found that Austin had not alleged or provided evidence
showing that he attempted to file a Step 2 grievance regarding his
claim against them. Because Austin presented no evidence that he
filed or attempted to file a Step 2 Grievance regarding his claims
against Lightfoot, Wright, and Russell, he did not establish a
genuine issue of material fact regarding exhaustion or show that he
No. 03-40765
-4-
made a substantial effort to exhaust his administrative remedies.
See Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998). Assuming,
arguendo, that the exhaustion requirement is an affirmative defense
that may be waived, such a waiver would not be applicable in this
case because the issue was raised at a pragmatically sufficient
time and Austin was not prejudiced by the defendants’ failure to
raise the issue earlier. See Lafreniere Park Found. v. Broussard,
221 F.3d 804, 808 (5th Cir. 2000).
The forfeiture of $1,200 from Austin’s prison trust account
did not violate due process even if it was unauthorized because
Austin had a meaningful postdeprivation remedy for the forfeiture,
such as a state-law tort action for conversion. See Hudson v.
Palmer, 468 U.S. 517, 533 (1984); Cathey v. Guenther, 47 F.3d 162,
164 (5th Cir. 1995). Considering that Austin does not argue on
appeal that the procedures followed during his disciplinary
proceedings violated his due process rights, he has waived any such
argument. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993).
As Austin did not explain how the responses to his pending
discovery request would have created a genuine issue of material
fact, the magistrate judge did not abuse her discretion by granting
summary judgment prior to the defendants responding to the
discovery request. See Washington v. Allstate Ins. Co., 901 F.2d
1281, 1285 (5th Cir. 1990). We need not reach Austin’s remaining
points of error.
No. 03-40765
-5-
AFFIRMED.