Case: 09-60503 Document: 00511058193 Page: 1 Date Filed: 03/22/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 22, 2010
No. 09-60503
Summary Calendar Charles R. Fulbruge III
Clerk
KENNETH C. TAYLOR, JR.,
Plaintiff-Appellant
v.
A.W. BURNS, Assistant Warden at DCF, In Her Individual Capacity;
UNKNOWN PERRY, Nurse Supervisor, In Her Individual Capacity; MICHAEL
BECKHAM, Nurse Practitioner, In His Individual Capacity; DOCTOR THOMAS
LEHMAN, Medical Director, In His Individual Capacity; DOCTOR ROCHELL
WALKER, Medical Doctor, In Her Individual Capacity,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:08-CV-36
Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Kenneth C. Taylor, Jr., Mississippi prisoner # 66963, appeals the district
court’s summary judgment dismissal of his 42 U.S.C. § 1983 lawsuit, asserting
claims of deliberate indifference to his serious medical needs, for failure to
exhaust administrative remedies, pursuant to 42 U.S.C. § 1997e(a). We review
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-60503
the district court’s grant of summary judgment de novo. Cousin v. Small, 325
F.3d 627, 637 (5th Cir. 2003).
The undisputed record evidence establishes that Taylor did not complete
the required three-step grievance process established by the Mississippi
Department of Corrections (MDOC) prior to filing the instant lawsuit. See Gates
v. Cook, 376 F.3d 323, 330 (5th Cir. 2004). If his brief is liberally construed,
Taylor argues, for the first time on appeal, that he in fact exhausted his
administrative remedies, “follow[ing] the proper institutional procedure” to
address his complaint by forwarding his complaints upward through “the chain
of command within the medical department.” Even if the court were to consider
the newly raised claim, it is insufficient to show any error in the district court’s
dismissal as Taylor’s asserted pursuit of an informal grievance does not
demonstrate the required exhaustion. See Wright v. Hollingsworth, 260 F.3d
357, 358 (5th Cir. 2001).
Taylor alternatively contends that he should not have been required to
exhaust his administrative remedies fully because the MDOC did not properly
process his grievance. He additionally argues that he effectively exhausted his
remedies because the step-two response was untimely, meaning that his
grievance was pending for more than 90 days, in violation of MDOC policy.
As the district court determined, Taylor has not established a rare
instance that would warrant waiver of the exhaustion requirement. See
Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir. 1998) (overruled by implication
on other grounds by Jones v. Bock, 549 U.S. 199, 215 (2007). Taylor’s assertion
that the MDOC improperly processed his grievance does not excuse his failure
to pursue all three steps of the grievance procedure. See Wright, 260 F.3d at
358. Even if the relief he sought was unavailable under the grievance procedure
or as a result of the way in which his grievance was processed, he is not excused
from the exhaustion requirement. See id. Additionally, Taylor’s assertion that
he effectively exhausted his administrative remedies by virtue of the fact that
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No. 09-60503
the step-two response was delayed, meaning that his grievance was pending for
more than the 90 days allotted, is without merit; Taylor nevertheless was
required to proceed to the third step. The expiration of the time for the prison
to respond would result in exhaustion only if Taylor had timely pursued his
grievance at each step of the process. Cf. Underwood, 151 F.3d at 295. To the
extent that Taylor’s arguments can be construed as an assertion that requiring
him to exhaust his administrative remedies unduly prejudiced him, the
argument is similarly unavailing as no “undue-prejudice” exception to § 1997e
exists. See Clifford v. Gibbs, 298 F.3d 328, 332 (5th Cir. 2002).
Taylor has not demonstrated any error in the district court’s judgment.
Accordingly, the judgment is AFFIRMED. Taylor’s motion for a preliminary
injunction is DENIED.
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