Darnell WILSON, Plaintiff-Appellant, v. Christopher B. EPPS, Commissioner, Mississippi Department of Corrections; James Holman, Warden at Central Mississippi Correctional Facility; Margarett Bingham, Superintendent at Central Mississippi Correctional Facility; Eddie Cates, Classification and Moving Supervisor at Central Mississippi Correctional Facility, Defendants-Appellees.
No. 13-60574
United States Court of Appeals, Fifth Circuit
Jan. 8, 2015.
776 F.3d 296
In Descamps, another direct appeal, the Supreme Court held that “sentencing courts may not apply the modified categorical approach” to determine if a conviction is a “violent felony” under the ACCA when the crime of conviction “has a single, indivisible set of elements.” See Descamps, 133 S.Ct. at 2281-82. Nothing in Descamps indicates that its holding announced a new rule that was constitutionally based, and Descamps did not announce that its holding applied retroactively to cases on collateral review. Cf. United States v. Montes, 570 Fed. Appx. 830, 831 (10th Cir.2014) (“[T]he Descamps decision did not recognize a new right.“). Again, we have found no Supreme Court precedent declaring Descamps to be applicable to cases on collateral review. Descamps thus does not provide a basis for Jackson‘s successive
Therefore, we hold that none of the cases on which Jackson relies, including Begay, Johnson, and Descamps, authorizes Jackson to file his proposed successive
IT IS ORDERED that the motion for authorization is DENIED.
Darnell WILSON, Plaintiff-Appellant,
v.
Christopher B. EPPS, Commissioner, Mississippi Department of Corrections; James Holman, Warden at Central Mississippi Correctional Facility; Margarett Bingham, Superintendent at Central Mississippi Correctional Facility; Eddie Cates, Classification and Moving Supervisor at Central Mississippi Correctional Facility, Defendants-Appellees.
E. GRADY JOLLY, Circuit Judge:
Darnell Wilson, Mississippi prisoner # 159643, filed a complaint in the district court alleging that the prison-official defendants had violated his1 constitutional rights. The magistrate judge dismissed the complaint on the ground that Wilson had failed to exhaust administrative remedies. In his primary contention on appeal, Wilson argues that the prison‘s failure to respond to his grievances excuses his non-exhaustion. We disagree because, under both the particular grievance process at issue here and the settled law of this circuit, a prison‘s failure to respond at preliminary steps in its grievance process does not relieve a prisoner of the duty to complete the remaining steps. We therefore AFFIRM.
I.
Darnell Wilson is a prisoner who, at all times relevant to this appeal, was housed at Central Mississippi Correctional Facility (“CMCF“). On September 20, 2010, Wilson filed a complaint in the district court. In the 63-page complaint, he alleged a host of facts and incidents aimed at showing that the defendants—the Commissioner of the Mississippi Department of Corrections (“MDOC“), the warden of CMCF, and other employees of CMCF—had violated his constitutional rights. Among these allegations were that his uniform and linens had not been changed often enough, that he received a haircut against his will that was administered with unsterilized scissors, and that he was exposed to secondhand cigarette smoke emitted by his fellow prisoners. The complaint
Darnell Wilson, Meridian, MS, pro se.
Tommy Darrell Goodwin, Esq., Assistant Attorney General, Keith Lerone Gates, Esq., Special Assistant U.S. Attorney, Office of the Attorney General, Jackson, MS, for Defendants-Appellees.
The parties consented to proceed before the magistrate judge. The defendants then moved to dismiss on the ground that Wilson had not exhausted administrative remedies, pointing to statements in Wilson‘s complaint and attaching several hundred pages’ worth of Wilson‘s grievances and related documents. Wilson opposed the motion, asserting that the exhaustion requirement should be deemed satisfied because of the prison‘s failure to respond to his grievances.
Construing the defendants’ motion as a motion for summary judgment, the magistrate judge dismissed Wilson‘s claims. The magistrate judge held that Wilson‘s complaint, together with the grievance records, demonstrated that Wilson had failed to exhaust administrative remedies. Further, the magistrate judge found that Wilson had not alleged any ailment that might excuse his failure to exhaust, and that, though the prison had failed to respond, there is no “substantial compliance” exception to the exhaustion requirement in this circuit. Finally, the magistrate judge held that Wilson‘s arguments about the length of MDOC‘s grievance process were unavailing, as this court had already approved of a grievance process similar to MDOC‘s. Wilson appeals from this dismissal.
II.
“We review the grant of summary judgment de novo, applying the same standards as the district court.” Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir.2010) (internal quotation marks omitted). Those standards require the court to grant summary judgment 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.”
Failure to exhaust is an affirmative defense, such that the defendants have the burden of demonstrating that Wilson failed to exhaust administrative remedies. Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). At the summary-judgment stage, this means that the defendants “must establish beyond peradventure all of the essential elements of the defense of exhaustion to warrant summary judgment in their favor.” Dillon, 596 F.3d at 266.
III.
A.
Under
MDOC‘s grievance process is called the Administrative Remedy Program (“the Program“). Prior to the filing of Wilson‘s suit, the Program provided for a three-step process that is summarized in Gates v. Cook, 376 F.3d 323 (5th Cir.2004)2:
1) the inmate writes a letter to the Superintendent/Deputy Commissioner in care of the Legal Claims Adjudicator that is referred to a respondent by the Legal Claims Adjudicator; 2) if dissatisfied, the inmate may request relief from the Superintendent/Deputy Commissioner; 3) if dissatisfied, the inmate may appeal to the Commissioner in care of the ARP Administrator. The Commissioner will notify the inmate of his final decision within forty days of receiving the appeal..... The ARP also provides that “[n]o more than ninety (90) days from initiation to completion of the process shall elapse, unless an extension has been granted” and that “expiration of response time limits without receipt of a written response shall entitle the offender to move on to the next step in the process.”
Id. at 330. First-step letters are referred to as “ARPs.” Finally, MDOC employs a “backlogging” policy under which only one ARP is considered active at a time, while the rest are maintained in “backlog.”
B.
Wilson presents two arguments on appeal. First, he argues that summary judgment was inappropriate because the Program‘s grievance process is “too lengthy,” “unconstitutional,” and “improper.” Second, Wilson contends that his administrative remedies should be deemed exhausted because MDOC failed timely to respond to his ARPs.
The defendants respond that the fact of exhaustion “is not at issue” because Wilson‘s statements in his complaint conclusively demonstrate his failure to exhaust. The defendants further argue that MDOC‘s grievance process is permissible because, in Wilson v. Boise, 252 F.3d 1356 (5th Cir.2001) (unpublished), this court approved of a backlogging procedure similar to the one employed by MDOC.
Wilson‘s first argument—that the ARP‘s grievance process is unconstitutional because it gives MDOC too much time to respond—is meritless. Initially, Wilson cites no authority and provides no reasoning to support his argument that the Constitution speaks to how long the prison‘s grievance process may take. Moreover, we have observed before that an “inquiry [into] whether administrative procedures satisfy minimum acceptable standards of fairness and effectiveness” is
We turn, then, to Wilson‘s second argument—that the prison‘s failure to respond to his ARPs excused him from
Wilson, then, cannot maintain a suit founded on any claim that he presented to the prison in only a step-one ARP, irrespective of whether the prison responded within the time allotted for rendering step-one responses. To the contrary, the prison‘s failure to respond will result in exhaustion of Wilson‘s administrative remedies only if Wilson went on to file both a step-two and a step-three appeal—that is, only if Wilson “pursue[d] the grievance remedy to conclusion,” see Wright, 260 F.3d at 358—and the prison did not make a timely response at that point. With these principles in mind, we turn to whether there is a genuine issue of material fact that precludes summary judgment.
The defendants rely on Wilson‘s complaint to demonstrate his failure to exhaust. Wilson filed a form complaint, questions 6 and 7 of which deal with exhaustion. Question 6 asked Wilson whether he “presented to the grievance system the same facts and issues” alleged in the complaint. Wilson checked “Yes.” Question 7.C then asked Wilson to “state everything [he] did to present [his] griev-
These statements in Wilson‘s initial complaint are sufficient to demonstrate that there is no genuine issue of material fact as to whether Wilson exhausted his administrative remedies. See, e.g., Hicks v. Lingle, 370 Fed.Appx. 497, 498 (5th Cir.2010) (“Dismissal may be appropriate ... when, on its face, the complaint establishes the inmate‘s failure to exhaust.“) (citing Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007)). As explained above, Wilson‘s remedies are not exhausted unless Wilson proceeded through all three steps of the Program‘s process, even if MDOC failed to respond at either of the preliminary steps. According to his complaint, however, Wilson did not proceed through all three steps of the Program‘s process; instead, he completed only the first step of submitting ARPs, and then filed suit when those ARPs were not responded to in a timely fashion.
Moreover, even if we were to assume (contrary to the representations in Wilson‘s complaint) that Wilson did move on to steps two and three after the prison failed to respond to his ARPs, the prison‘s time limit for responding to his step-three appeals could not have expired by the time he filed his complaint. Wilson submitted his ARPs between July 23 and August 15, 2010. Thus, because the outer limit for how long the process can take is 90 days, see Gates, 376 F.3d at 330, the earliest date on which a third-step response could have become due was 90 days after July 23; that is, October 21. Given that Wilson filed his complaint in the district court on September 20, 2010, it is impossible for MDOC to have failed to timely respond to a third-step appeal prior to the filing of the complaint.
Thus, Wilson‘s complaint makes clear that he neither received a final-step response from the prison nor filed a final-step appeal and sued only after the prison failed to timely respond at that point. Accordingly, there is no genuine issue of material fact as to whether Wilson exhausted his administrative remedies, and summary judgment was appropriate.
IV.
In this appeal, Wilson argues that he need not have exhausted administrative remedies before suing because the prison‘s grievance process was unconstitutional and because the prison failed to respond to his grievances. For the reasons above, we reject both arguments. The magistrate judge‘s dismissal is, therefore,
AFFIRMED.
E. GRADY JOLLY
CIRCUIT JUDGE