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Hicks v. Garcia

United States Court of Appeals, Fifth Circuit
Apr 9, 2010
372 F. App'x 557 (5th Cir. 2010)

Summary

concluding the district court did not err by dismissing an IFP plaintiff s case “prior to service of process”

Summary of this case from Hernandez v. El Pasoans Fighting Hunger

Opinion

No. 09-11045 Summary Calendar.

April 9, 2010.

Brady Hicks, Jr., Livingston, TX, pro se.

Appeal from the United States District Court for the Northern District of Texas, USDC No. 4:06-CV-311.

Before JOLLY, WIENER, and ELROD, Circuit Judges.


Plaintiff-Appellant Brady Hicks, Jr., Texas prisoner # 1254510, appeals the district court's final judgment dismissing his 42 U.S.C. § 1983 civil rights complaint against Deputy/Jailer J. Garcia for failure to exhaust administrative remedies. Hicks contends that the district court erred when, sua sponte, it dismissed his claims against Deputy Garcia prior to service of process and without affording notice and an opportunity to respond. We affirm.

"Notwithstanding any filing fee, or any portion thereof, that may have been paid," the district court must dismiss an in forma pauperis complaint if, at any time, it determines that the action is frivolous or fails to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B). Further, 28 U.S.C. § 1915A requires that the district court screen complaints filed by a prisoner seeking redress from a government officer or employee and dismiss claims that the court determines to be frivolous or malicious, or that fail to state a claim on which relief may be granted. § 1915A(a), (b)(1).

Under the Prison Litigation Reform Act, inmates must exhaust "such administrative remedies as are available" prior to bringing a civil action. § 1997e(a). Failure to exhaust is an affirmative defense, and "inmates are not required to specifically plead or demonstrate exhaustion in their complaints." Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). Although district courts may not screen prisoners' complaints for failure to plead exhaustion, they may, sua sponte, "dismiss a case prior to service on defendants for failure to state a claim, predicated on failure to exhaust, if the complaint itself makes clear that the prisoner failed to exhaust." Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007). "[We review] a district court's dismissal of a prisoner's complaint for failure to exhaust de novo." Id. at 327.

When he was a pretrial detainee in the Tarrant County Jail (TCJ) and was restrained in a restraint chair, Hicks was assaulted by a fellow inmate. In his amended complaint, Hicks alleged that he filed grievances complaining of the assault and attached copies of three grievances he had filed while in the TCJ. Hicks also alleged that the TCJ did not maintain a two-step grievance procedure and that TCJ officials never responded to his grievances.

As we have previously noted, "[t]he TCJ provides a two-step procedure for presenting a grievance: (1) an inmate must send a written statement directly to the Grievance Board, which should respond within 60 days, then (2) if an inmate is dissatisfied with the Grievance Board's response, he may appeal in writing to the Inmate Grievance Appeal Board within five days of receiving the written response to his grievance." Hicks v. Tarrant County Texas, 345 Fed.Appx. 911, 913 (5th Cir. 2009); Hicks v. Deputy Parker, 349 Fed.Appx. 869, 871-72 (5th Cir. 2009) (unpublished). Accepting Hicks's allegations as true, he exhausted the first step of the two-step grievance procedure once the 60-day period for responding had expired. See Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998) (overruled on other grounds). Because he did not appeal the Grievance Board's decisions (or lack thereof) by filing a step-two grievance, however, Hicks's failure to pursue his grievance remedy to conclusion constituted a failure to exhaust his administrative remedies. See Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001).

Hicks's amended complaint and our prior decisions make clear that he failed to exhaust his administrative remedies and thus failed to state a claim on which relief may be granted. Therefore, the district court did not err when it dismissed Hicks's claims against Deputy Garcia sua sponte prior to service of process. See Carbe, 492 F.3d at 328. The record shows that the exhaustion issue was thoroughly briefed and that Hicks was given adequate notice that his claims were subject to dismissal for failure to exhaust administrative remedies. Finally, the record does not support Hicks's contention that he filed petitions for certiorari in Hicks v. Tarrant County Texas and Hicks v. Deputy Parker. See Hicks, 345 FedAppx. at 911; Hicks, 349 Fed.Appx. at 870-71. Accordingly, the district court's judgment is

AFFIRMED.


Summaries of

Hicks v. Garcia

United States Court of Appeals, Fifth Circuit
Apr 9, 2010
372 F. App'x 557 (5th Cir. 2010)

concluding the district court did not err by dismissing an IFP plaintiff s case “prior to service of process”

Summary of this case from Hernandez v. El Pasoans Fighting Hunger

affirming sua sponte dismissal for failure to state a claim where the plaintiff had adequate notice that his claims where subject to dismissal for failure to exhaust administrative remedies

Summary of this case from Berk v. Douglas
Case details for

Hicks v. Garcia

Case Details

Full title:Brady HICKS, Jr., Plaintiff-Appellant Deputy/Jailer J. GARCIA, Tarrant…

Court:United States Court of Appeals, Fifth Circuit

Date published: Apr 9, 2010

Citations

372 F. App'x 557 (5th Cir. 2010)

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