Case: 23-20128 Document: 164-1 Page: 1 Date Filed: 05/02/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
May 2, 2024
No. 23-20128
Lyle W. Cayce
____________ Clerk
John Anthony Buchanan,
Plaintiff—Appellant,
versus
Coronda Harris; Detention Officer Wang, #130996;
Nurse Brandi Hawking; Deputy Sheriff Sergeant J.
Wheeler; William Laws; Detention Officer W. Gibson;
Detention Officer Sergeant Pickens-Wilson;
Detention Officer Mendoza,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-4571
______________________________
Before Jones, Clement, and Wilson, Circuit Judges.
Edith Brown Clement, Circuit Judge:*
John Buchanan is a pretrial detainee in the Harris County Jail. A
below-the-knee amputee, Buchanan was housed for most of 2019 in a
handicap unit. On November 8, 2019, however, jail officials transferred
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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Buchanan to a general-population unit. The next day, Buchanan filed at least
two internal grievances, complaining that the general-population unit failed
to accommodate his disability. Four days later, while at least one of
Buchanan’s grievances remained pending, Buchanan filed this federal
lawsuit, making the same claims and complaining of the same conduct as in
his grievances. Because Buchanan failed to exhaust available administrative
remedies before filing suit, his claims are barred. We therefore AFFIRM the
district court’s grant of summary judgment on this basis.
I.
A.
Buchanan was arrested on January 20, 2019, for aggravated assault
with a deadly weapon and has since been a pretrial detainee at Harris County
Jail, which is operated by the Harris County Sherriff’s Office (“HCSO”).
Years before entering the jail, Buchanan’s right leg was amputated below the
knee. Consequently, Buchanan uses a prosthetic limb and a walker. Shortly
after entering the jail, Buchanan was assigned to handicap housing, where he
resided from January 26, 2019, until November 8, 2019. Buchanan’s initial
handicap unit, 2H1, contained “toilets with hand rails,” “showers with seats
and hand rails,” and other amenities that accommodated his disability.
On November 8, 2019, however, jail officials—citing disciplinary
issues—transferred Buchanan to a general-population housing unit that
provided none of the disability accommodations of unit 2H1.
On November 9, 2019, Buchanan submitted at least two1 grievances
concerning the November 8 transfer from unit 2H1 to general-population
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1
Although the jail has record of only two grievances from Buchanan concerning,
and immediately following, the November 8 transfer, Buchanan claims in his briefing and
declarations to have submitted three such grievances. For reasons explained below, that
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housing. The first grievance—No. 74180—was an inmate complaint form. In
it, Buchanan complained that the transfer violated his disciplinary due
process and sought a return to unit 2H1. The complaint form reached
William Laws, the Americans with Disabilities Act (“ADA”) Compliance
Coordinator at the HCSO, who lacked authority to determine housing
assignments, as this fell under the purview of the Medical Services division.
On November 11, 2019, therefore, Laws requested that Medical Services
evaluate Buchanan for a special-needs assessment, suggested that Buchanan
be transferred to a handicap-accessible unit, and closed the complaint on his
end. Evidently a result of Laws’s referral, Buchanan received a shower chair
on November 13, 2019. Buchanan did not, on that date, get returned to unit
2H1 or otherwise receive any of the other accommodations that he had in unit
2H1.
The second grievance—No. 30622—is a letter that Buchanan mailed
to the ADA Coordinator for the Harris County Human Resources and Risk
Management division (“HRRM”). In the letter, Buchanan explained that he
was an amputee and requested access to a housing unit with the following
accommodations: (1) a shower with railings and a seat; (2) a toilet with rails
to help him sit down and get up; (3) a bottom bunk; and (4) ADA-compliant
sinks. Buchanan threatened to sue if the jail did not comply. The ADA
Coordinator at the time—Coronda Harris—received Grievance No. 30622
on November 27, 2019. In her role at HRRM, Harris lacked authority to
investigate inmate grievances; she explained this to Buchanan in a December
12, 2019, response letter and further noted that she had referred Grievance
No. 30622 to HCSO for investigation.
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dispute of fact is genuine but not material here and thus does not preclude summary
judgment.
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Harris sent Grievance No. 30622 to Laws, who received the grievance
on December 18, 2019, and began his investigation into the claims. Laws
contacted the Medical Services division and asked them to consider
returning Buchanan to a housing unit that would accommodate his disability.
In his correspondence with Medical Services, Laws learned that, unrelated
to this lawsuit, on December 11, 2019, Buchanan had been transferred to a
handicap-accessible unit. Laws therefore deemed the matter
“Founded/Resolved” on December 20, 2019. Yet, despite expressing his
satisfaction with the new unit, Buchanan appealed Laws’s resolution of
Grievance No. 30622 on December 28, 2019. The Grievance Board
considered the matter and, on December 30, 2019, determined that
Buchanan’s appeal was “Unfounded.”
B.
Buchanan submitted this lawsuit to the district court on November 13,
2019—just five days after the complained-of transfer and just four days after
filing his two internal grievances concerning the transfer, at least one of which
remained pending.2 After initially suing just the HCSO, Buchanan twice
amended his complaint, adding Harris, Laws, and Gibson. Buchanan argued
that his transfer from unit 2H1 to general-population housing violated various
constitutional provisions as well as the ADA. The district court dismissed the
suit as frivolous under 28 U.S.C. § 1915(e)(2)(B). Buchanan v. Harris, No.
CV H-19-4571, 2020 WL 3577157, at *9 (S.D. Tex. July 1, 2020). Buchanan
appealed, and we affirmed in part, remanding Buchanan’s ADA claim for
compensatory damages “against the defendants in their official capacity.”
Buchanan v. Harris, No. 20-20408, 2021 WL 4514694, at *3 (5th Cir. Oct. 1,
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2
Buchanan signed the documents that attended his complaint on November 13,
2019; his complaint was deemed filed upon receipt on November 19, 2019.
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2021). Buchanan’s ADA claim for compensatory damages against Harris,
Laws, and Gibson—the sole defendants sued in their official capacity—is
thus the sole remaining claim in this suit.
On remand, Buchanan sought leave to file a third amended complaint,
proposing to add, inter alia, new claims for retaliation and alleged violations
of the Rehabilitation Act. The district court denied that motion, holding that
the proposed amendments fell outside the scope of the circuit court’s
mandate for remand and would be prejudicial to the Defendants. The officials
moved for summary judgment, arguing that (1) Buchanan failed to comply
with the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(e) by
not exhausting the administrative-grievance process before filing this suit, (2)
the PLRA bars Buchanan’s claim for compensatory damages because no
evidence showed that Buchanan’s November 8, 2019, housing transfer
caused any physical injury beyond de minimis harm, and (3) Buchanan’s ADA
claim is meritless because there is no evidence that the defendants’ alleged
failure to accommodate Buchanan’s disability constitutes intentional
discrimination. Defendants’ summary-judgment motion was the first
instance in which they asserted this failure-to-exhaust affirmative defense.
The district court granted summary judgment for Defendants,
holding as follows: (1) Buchanan failed to exhaust all available administrative
remedies before filing this suit, and the Defendants did not waive this “failure
to exhaust” affirmative defense; (2) evidence reflected at most a de minimis
physical injury resulting from Buchanan’s November 8 transfer, and (3)
evidence reflected no intentional discrimination in the jail’s allegedly
unreasonable accommodation, as required for compensatory relief under the
ADA. Buchanan appealed.
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II.
We review a grant of summary judgment de novo, Favela v. Collier, 91
F.4th 1210, 1212 (2024), “applying the same standard as the district court,”
Austin v. Kroger Tex., L.P., 864 F.3d 326, 328 (5th Cir. 2017). Summary
judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A district court’s ruling on whether
a party waived its affirmative defense, however, is generally subject to an
abuse-of-discretion standard. Motion Med. Techs., L.L.C. v. Thermotek, Inc.,
875 F.3d 765, 771 n.8 (5th Cir. 2017) (collecting cases). We interpret pro se
briefs liberally, affording all reasonable inferences that can be drawn from
them. Tex. Comptroller of Pub. Accounts v. Liuzza (In re Tex. Pig Stands, Inc.),
610 F.3d 937, 941 n.4 (5th Cir.2010).
III.
Under the PLRA, an inmate must exhaust all administrative remedies
before filing suit. 42 U.S.C. § 1997e(a) (“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.”).
This requirement applies equally to pretrial detainees as it does to convicted
prisoners, id. § 1997e(h), and it covers claims made under the ADA, Valentine
v. Collier, 978 F.3d 154, 165 (5th Cir. 2020). “Pre-filing exhaustion is
mandatory,” and “district courts have no discretion to excuse a prisoner’s
failure to properly exhaust the prison grievance process before filing their
complaint.” Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012) (emphasis
added); accord Ross v. Blake, 578 U.S. 632, 638–39 (2016). Importantly, even
when an inmate seeks monetary damages, which may not be available through
prison grievance proceedings, exhaustion is still a prerequisite to filing suit.
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Booth v. Churner, 532 U.S. 731, 740–41 (2001); Porter v. Nussle, 534 U.S. 516,
524 (2002).
Here, Buchanan filed this lawsuit just four days after he filed his two
grievances. Crucially, at least one of those two grievances concerning the
November 8 transfer—No. 30622—remained pending at the time Buchanan
filed suit.3 In fact, that grievance did not get resolved for another six weeks
after Buchanan filed his federal lawsuit, and, by the time it did, Buchanan had
been returned to fully ADA-compliant housing, as he desired.
Buchanan advances two main arguments in rebuttal. First, he argues
that the Defendants waived their failure-to-exhaust affirmative defense by
raising it for the first time in their summary-judgment motion. And second, he
argues that the jail’s administrative remedies were not actually available, and
therefore need not be exhausted, because the officials in practice do not
follow their own written grievance procedures. We address argument each in
turn.
“Failure to exhaust” is an affirmative defense in PLRA suits. Jones v.
Bock, 549 U.S. 199, 215 (2007). An affirmative defense generally must be
asserted “[i]n responding to a pleading,” Fed. R. Civ. P. 8(c)(1), or “in
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3
Even if we were to conclude that Grievance No. 74180 was fully resolved when
Buchanan received a shower chair on November 13, 2019—at a time that day before
Buchanan executed the initial complaint—this would be immaterial because Buchanan’s
other grievance concerning the November 8 transfer—Grievance No. 30622—remained
pending when Buchanan filed suit. Moreover, to the extent Buchanan is arguing that he
believed that both (or all) of his grievances concerning the November 8 transfer had been
exhausted when he received the shower chair, that position is unavailing because the mere
fact that Buchanan may have believed his grievances to be exhausted does not mean that
they actually were, which is of course the standard. Nor is it material in this particular case
whether either grievance perfectly complied with the HCSO’s stated grievance
procedures: the operative question here is whether Buchanan, in pressing his grievances
concerning the November 8 transfer, exhausted all available administrative remedies before
filing this suit. As explained herein, he did not, so his claims here are barred.
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the responsive pleading,” Fed. R. Civ. P. 12(b). Thus, as Buchanan
correctly notes in his brief, this court has long held that “[a]n affirmative
defense may be raised on a motion for summary judgment only if that motion
is the first pleading responsive to the substance of the allegations.” United
States v. Burzynski Cancer Rsch. Inst., 819 F.2d 1301, 1307 (5th Cir. 1987); see
also Funding Sys. Leasing Corp. v. Pugh, 530 F.2d 91, 96 (5th Cir. 1976).
Equally, however, this court has long recognized that “technical
failure to comply precisely with Rule 8(c) is not fatal” where a party raises
the defense in the trial court “in a manner that does not result in unfair
surprise.” Allied Chem. Corp. v. Mackay, 695 F.2d 854, 855–56 (5th Cir.
1983); accord Jones v. Miles, 656 F.2d 103, 107 n.7 (5th Cir. 1981) (“Neglect
to affirmatively plead the defense is simply noncompliance with a technicality
and does not constitute a waiver where there is no claim of surprise.”).
Specifically, if a defendant raises an affirmative defense “at a pragmatically
sufficient time, and [the plaintiff] was not prejudiced in its ability to
respond,” the defense is not waived. Giles v. Gen. Elec. Co., 245 F.3d 474, 492
(5th Cir. 2001); accord Arismendez v. Nightingale Home Health Care, Inc., 493
F.3d 602, 610 (5th Cir. 2007).
Accordingly, we have historically held that a failure to raise an
affirmative defense like exhaustion in the first responsive pleading is
excusable when the plaintiff has ample time to consider and respond to the
defense in advance of trial. See Vanhoy v. United States, 514 F.3d 447, 450–51
(5th Cir. 2008) (holding affirmative defense not waived where it was raised
for the first time in pretrial motions three months before trial); Johnson v.
Johnson, 385 F.3d 503, 516 n.7 (5th Cir. 2004) (holding there was no surprise
where defendants did not “wait[] until shortly before trial” to raise
exhaustion defense); Lafreniere Park Found. v. Broussard, 221 F.3d 804, 808
(5th Cir. 2000) (rejecting waiver argument where issue was raised for first
time at summary judgment because plaintiff availed itself of a fourteen-
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month “ample period” to file three responsive memoranda to the summary-
judgment motion and was not prejudiced in its ability to respond to the issue);
Allied Chem., 695 F.2d at 856 (defense, although not pled, was not waived
where included in pretrial order).
Here, the Defendants did not raise the failure-to-exhaust affirmative
defense in their first responsive pleadings: their answers. Nonetheless, each
Defendant asserted the affirmative defense in their summary-judgment
motion, which came less than three months after their answers and before a
trial date was set. Buchanan had almost nine months to address this theory
after it was raised and before the district court ruled on it. Buchanan first
addressed exhaustion in his objections to the Defendants’ summary-
judgment evidence, which he filed in September 2022. Three months later,
Buchanan again addressed exhaustion in a response to the summary-
judgment motion, noting that he understood the law concerning exhaustion
and arguing that the defense should not apply. Thereafter, Buchanan
addressed exhaustion in an additional response to the summary-judgment
motion. Given that Buchanan was able to formulate his arguments to counter
the exhaustion issue and addressed it on three occasions, the Defendants did
not raise exhaustion in a manner that “result[ed] in unfair surprise.”
Lafreniere, 221 F.3d at 808.
The district court concluded the same, holding that the Defendants’
assertion of the failure-to-exhaust defense in their summary-judgment
motion came at a pragmatically sufficient time and did not prejudice
Buchanan. We cannot conclude that this ruling was an abuse of discretion.
See Motion Med., 875 F.3d at 771 n.8.4
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4
“The terms waiver and forfeiture—though often used interchangeably by jurists
and litigants—are not synonymous”: “forfeiture is the failure to make the timely assertion
of a right; waiver is the ‘intentional relinquishment or abandonment of a known right.’”
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Buchanan’s second argument is that the administrative remedies
supposedly offered were, in practice, not available and, thus, need not be
exhausted. Buchanan appears to argue, for instance, that the fact that he filed
a third grievance of which there is no record shows that the jail does not
adhere to its own grievance procedures, and, thus, its remedies are effectively
unavailable.5
An administrative remedy that is “officially on the books” is
nonetheless unavailable (1) if “it operates as a simple dead end—with officers
unable or consistently unwilling to provide any relief to aggrieved inmates,”
(2) if it is “so opaque that it becomes, practically speaking, incapable of use,”
such as where “some mechanism exists to provide relief, but no ordinary
prisoner can discern or navigate it,” or (3) “when prison administrators
thwart inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” Ross, 578 U.S. at 643–44.
Here, the evidence shows that Laws investigated the grievance
submitted to HCSO and actively took steps to have the Medical Services
division address Buchanan’s concerns. Contrary to Buchanan’s argument,
the evidence does not signal a dead end, show that the Defendants were
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Hamer v. Neighborhood Hous. Servs., 583 U.S. 17, 20 n.1 (2017) (alteration adopted) (citation
omitted). Our case law uses the term “waiver” to describe the result of an untimely
assertion of an affirmative defense. See, e.g., Vanhoy, 514 F.3d at 450. Whether or not that
description is technically correct, the ultimate holdings of Vanhoy and similar cases are the
same: a delayed assertion of an affirmative defense is excusable where the assertion comes
at a pragmatically sufficient time and is not prejudicial to the opposing party.
5
Buchanan avers that he submitted a third grievance regarding his November 8
transfer and appears to argue that this disagreement between the parties concerning the
number of grievances is a genuine dispute of material fact that precludes summary
judgment. While the dispute may be genuine, it is not material because, as explained herein,
at least one of Buchanan’s grievances concerning the November 8 transfer remained
pending when Buchanan filed this lawsuit on the same subject (and was ultimately
reviewed, investigated, and resolved, rather than leading to a dead end).
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unwilling to provide relief, reflect that the grievance process was incapable of
use by the ordinary detainee, or indicate that the Defendants thwarted
Buchanan from taking advantage of the grievance process. See Ross, 578 U.S.
at 643–44. Rather, it shows that Laws ensured Buchanan’s claims were
reviewed, investigated, and resolved—and favorably so, insofar as Buchanan
ultimately received a fully compliant unit. And Laws’s review, investigation,
and resolution all transpired within two days of Laws’s receipt of Grievance
No. 30622, which detailed Buchanan’s ADA complaint and requested
accommodations. Whereas Laws’s receipt of the grievance was delayed by
over a month, that was because Buchanan sent the letter to the wrong
recipient.
In sum, the jail’s grievance procedures were not unavailable such that
Buchanan would be excused from exhausting internal channels before suing.
IV.
For the foregoing reasons, we AFFIRM. Because we resolve this case
on exhaustion grounds, we need not reach the remaining merits issues.
Furthermore, for the same reasons that the district court provided below, we
AFFIRM the district court’s denial of Buchanan’s motion for leave to file a
third amended complaint.
11