Case: 19-50514 Document: 00515703539 Page: 1 Date Filed: 01/12/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 19-50514 January 12, 2021
Lyle W. Cayce
Clerk
Bilal Muhammad,
Plaintiff—Appellant,
versus
Richard Wiles, El Paso County Sheriff,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:19-CV-51
Before Barksdale, Southwick, and Graves, Circuit Judges.
Per Curiam:*
Plaintiff is incarcerated in the El Paso County Jail Annex. He filed a
complaint against the sheriff alleging violations of his civil rights. He later
filed a status update in which he suggested that he had exhausted the jail’s
grievance process after he filed his complaint. The district court sua sponte
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 19-50514
dismissed the complaint on the basis of failure to exhaust administrative
remedies. We REVERSE and REMAND.
FACTUAL AND PROCEDURAL BACKGROUND
On February 5, 2019, Plaintiff Bilal Muhammad filed a
“Memorandum of Law in Support of Freedom of Religion” alleging that
defendant Richard Wiles, the El Paso County Sherriff, violated
Muhammad’s rights by refusing to serve him kosher meals. The district
court construed the “Memorandum” as a complaint and a request for a
temporary restraining order and preliminary injunction.
On February 21, 2019, Muhammad filed a status update in which he
stated that “all Prison Litigation Reform Act (PLRA) administrative
exhaustion requirements are now fulfilled on the Plaintiff’s part” as of
February 19, 2019.
Before serving Muhammad’s complaint on Wiles, the magistrate
judge screened it as required by 28 U.S.C. § 1915A. The magistrate judge
recommended that Muhammad’s complaint be dismissed for failure to
exhaust administrative remedies before filing suit. The magistrate judge
treated Muhammad’s status update as a “supplemental pleading” and stated
that “Muhammad’s own pleadings reflect that he exhausted his
administrative remedies fourteen days after filing suit.”
Muhammad filed objections to the magistrate judge’s report and
recommendation. Muhammad argued, among other things, that he was not
required to exhaust administrative remedies, that he had exhausted all
available remedies, and that no administrative remedies were available to
him. Muhammad also filed evidence of several earlier grievances that he had
allegedly submitted to proper prison authorities.
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In March 2019, the district court denied Muhammad’s request for a
temporary restraining order and preliminary injunction without referring to
Muhammad’s failure to exhaust his remedies. Then, in July 2019, the district
court entered an order accepting the magistrate judge’s report and
recommendation and dismissing Muhammad’s lawsuit on the basis of failure
to exhaust administrative remedies.
Muhammad filed a motion to alter or amend the court’s judgment,
which the district court denied. Muhammad appealed.
DISCUSSION
Muhammad proceeded pro se in the district court and has continued
to do so on appeal. Although we liberally construe arguments in a pro se brief,
Haines v. Kerner, 404 U.S. 519, 520 (1972), we still require pro se parties to
brief their arguments adequately. Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir.
1995). Muhammad’s brief makes passing references to the court’s denial of
his request for a temporary restraining order and preliminary injunction.
Such references are insufficient, and therefore he waived those arguments.
See United States v. Scroggins, 599 F.3d 433, 446–47 (5th Cir. 2010) (quoting
Knatt v. Hosp. Serv. Dist. No. 1 of E. Baton Rouge Par., 327 F. App’x 472, 483
(5th Cir. 2009)).
The argument Muhammad adequately presents is that the district
court erred by dismissing his lawsuit on the basis of failure to exhaust
administrative remedies. Muhammad argues that the district court erred by
considering material outside of the pleadings and by raising sua sponte the
affirmative defense of failure to exhaust administrative remedies.
Muhammad also argues that he has shown a genuine dispute of material fact
as to exhaustion. Alternatively, Muhammad argues that he was not required
to exhaust administrative remedies.
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I. Dismissal
We review de novo the dismissal of a prisoner’s complaint for failure
to exhaust administrative remedies. Carbe v. Lappin, 492 F.3d 325, 327 (5th
Cir. 2007). The PLRA requires a prisoner to exhaust administrative
remedies prior to filing suit. 42 U.S.C. § 1997e(a). The Supreme Court has
held, though, that “inmates are not required to specially plead or
demonstrate exhaustion in their complaints.” Jones v. Bock, 549 U.S. 199,
216 (2007). Instead, courts should follow “the usual practice under the
Federal Rules,” which is “to regard exhaustion as an affirmative defense.”
Id. at 212.
We have read Jones as “insisting upon a return to the regular pleading
order in the handling of the affirmative defense of failure to exhaust.” Carbe,
492 F.3d at 327–28. As a result, a “failure to exhaust must be asserted by the
defendant” unless “the complaint itself makes clear that the prisoner failed
to exhaust.” Id. at 328. This rule comports with the usual practice under the
Federal Rules, which is that a district court considering dismissal for failure
to state a claim must limit its review to “the facts stated in the complaint and
the documents either attached to or incorporated in the complaint . . . [and]
matters of which [the court] may take judicial notice.” Lovelace v. Software
Spectrum Inc., 78 F.3d 1015, 1017–18 (5th Cir. 1996).
In dismissing Muhammad’s complaint, the district court improperly
considered material outside of the complaint. First, the district court
considered Muhammad’s status update. Although the district court referred
to the status update as a “supplemental pleading,” we do not consider the
update to be part of the complaint. The status update was filed nearly three
weeks after the complaint and provided an update on administrative matters.
Muhammad requested that the court “grant the TRO & preliminary
injunction already submitted,” indicating that the status update provided
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further support for the complaint but did not add new allegations or a new
prayer for relief. Moreover, supplemental pleadings require the approval of
the court, Fed. R. Civ. P. 15(d), but Muhammad did not seek the court’s
approval prior to filing his status update, and the court never explicitly
approved its filing.
Second, the district court relied on a description of the El Paso County
Jail Annex (“EPCJA”) grievance process found in another district court
case, Villescas v. Wiles, No. EP-11-CV-19-DB, 2011 WL 3703492, at *3 (W.D.
Tex. Aug. 23, 2011). That case gave a brief description of the process in effect
when that grievance was considered in 2011. Id. The description came from
an “authenticated copy” of the grievance process that the court had
“ordered Defendant Sheriff Richard D. Wiles . . . to file.” Id.
Although Muhammad made a brief reference to the “EPCJA
grievance procedures” and “EPCJA inmate handbook” in his status update,
the EPCJA grievance process was not referenced in, attached to, or
incorporated in the complaint. There is also no evidence that the version of
the grievance process the district court considered was the same version in
effect when Muhammad submitted his grievances. Further, the district court
did not take judicial notice of the EPCJA grievance process.
The district court erred by considering Muhammad’s status update
and the EPCJA grievance process in dismissing the complaint. See Lovelace,
78 F.3d at 1017–18.
II. Summary judgment
We have held that an appellate court can assume that a district court
implicitly converted a dismissal to a summary judgment when it considered
material outside of the complaint. See Trinity Marine Prods., Inc. v. United
States, 812 F.3d 481, 487 (5th Cir. 2016). We have also held that a district
court may raise grounds for summary judgment sua sponte so long as the
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parties are provided notice and an opportunity to present relevant evidence.
Atkins v. Salazar, 677 F.3d 667, 678 (5th Cir. 2011). We need not decide
whether that usual practice is permissible in a PLRA action such as this one.
Even if the practice is permissible, summary judgment is not warranted here.
Summary judgment is proper if “there is no genuine dispute as to any
material fact.” Fed. R. Civ. P. 56(a). Muhammad submitted his inmate
handbook, which outlined a two-step grievance process involving an initial
grievance and an appeal to the Commander. Muhammad also submitted an
exhibit which purports to be a “Direct Appeal to Commander” and identifies
six grievances dated from January 7 through January 16, 2019, that allegedly
had been sent to a grievance board. There is a notation on the bottom right
of the exhibit that purports to be Muhammad’s recording EPCJA’s response
to his appeal to the Commander. The exhibit creates a genuine dispute of
material fact as to whether Muhammad exhausted administrative remedies.
Muhammad also argues that no administrative remedies were
available to him. There are no “freewheeling” exceptions to the PLRA’s
exhaustion requirement, but there is a “textual exception”: an inmate must
exhaust only those remedies that are “available.” Ross v. Blake, 136 S. Ct.
1850, 1855, 1858 (2016). The Court identified three potential circumstances
under which remedies would be considered unavailable: (1) when an
administrative process “operates as a simple dead end,” (2) when the
process is “so opaque that it becomes, practically speaking, incapable of
use,” and (3) when “prison administrators thwart inmates from taking
advantage of a grievance process through machination, misrepresentation, or
intimidation.” Id. at 1859–60.
Muhammad asserts that all three of these circumstances are present,
and he put forth some evidence to support this assertion. He submitted two
exhibits that purport to be grievances complaining that the administrative
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process was being manipulated and that there were hidden procedures
applied in an unfair manner. These grievances are dated more than one
month before he asserted in court that the grievance process was a dead end.
Muhammad also identifies additional relevant evidence that he could obtain
through discovery, including his grievance file and a video showing that he
asked an officer for a grievance form that was never delivered, which he
describes as “common custom.”
In rejecting Muhammad’s arguments, the district court relied on the
inmate handbook as proof that administrative remedies were available.
Muhammad’s argument is not that EPCJA lacked a policy, but that EPCJA
failed to follow that policy. Muhammad’s evidence establishes a genuine
dispute of material fact as to whether administrative remedies were available.
See id. at 1859–60; Dillon v. Rogers, 596 F.3d 260, 268–69 (5th Cir. 2010)
(finding that the record was “fragmentary” on the issue of the availability of
remedies and remanding to the district court for discovery and further
development of the record).
Since the issue of exhaustion may be considered on remand, we reject
Muhammad’s contention that exhaustion is excused when “special
circumstances” exist. Ross, 136 S. Ct. at 1855; see also Dillon, 596 F.3d at 270.
Muhammad also argues that exhaustion is not required for injunctive
relief. We held in an unpublished opinion that “[r]equests for injunctive
relief are not exempt from the exhaustion requirement, and failure to
completely exhaust prior to filing suit cannot be excused.” McMillan v. Dir.,
Tex. Dep’t of Crim. Just., Corr. Insts. Div., 540 F. App’x 358, 359 (5th Cir.
2013) (citing Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012)). We find
the reasoning of that opinion persuasive and adopt its conclusion here.
Muhammad also argues that he never filed a “complaint,” just a
request for a temporary restraining order and preliminary injunction, so the
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exhaustion requirement does not apply to him. This argument overlooks that
any “civil action is commenced by filing a complaint.” Fed. R. Civ. P. 3.
Muhammad may have styled his initial filing as a “Memorandum,” but the
district court construed it liberally as a complaint to commence his civil
action. Had that court not done so, this suit would never have been
commenced. The exhaustion requirement applies.
We REVERSE and REMAND for further proceedings.
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