# United States Court of Appeals

f or the Fifth Circuit

No. 20

- 10431 Summary Calendar

Daniel Armondo Trojanowski,

Plaintiff

— Appellant ,

versus

Fidel Vasquez,

Defendant

— Appellee

.

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:20

- CV

- 2

Before Barksdale, Willett, and Duncan, Circuit Judges

. Per Curiam : *

Daniel Armando Trojanowski, Texas prisoner # 2278896, filed this action pursuant to 42 U. S.C. § 1983 against Tarrant County prison officials

. He claimed : Officer Vasquez failed to intervene in an inmate

- on

- inmate assault committed against him ; and the Sheriff, an u nnamed c aptain, and

* Pursuant to 5th Cir cuit R ule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir cuit R ule 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED August 25, 2021 Lyle W. Cayce Clerk Case: 20-10431 Document: 00515994771 Page: 1 Date Filed: 08/25/2021No. 20

- 10431

2 another defendant were connected to a cover

- up of the assault and prevented him from exhausting his administrative remedies. Proceed ing pro se , he appeals the dismissal of his claims.
In February 2020, t he court dismissed Trojanowski’s claims against
the latter three defendants , pursuant to 28 U.S.C. § 1915A (b), for failure to
state a claim , entering a final judgment against the claims after concluding there was no just reason for delay . That April , the court granted Officer Vasquez’ summary

- judgment motion against Trojanowski’s claims against Vasquez , concluding : Trojanowski failed to exhau st his administrative
remedies ; and the o fficer was entitled to qualified immunity.
Trojanowski appealed in April . He contends : the court improperly rendered summary judgment , including by not issuing a scheduling order and allowing him to conduct discovery before ruling ; and the court’s February dismissal of his claims against the other three defendants is reviewable on appeal.
Assuming Trojanowski’s claims against Officer Vasquez are adequately briefed , a dismissal for failure to exhaust is reviewed de novo

. Carbe v. Lappin , 492 F.3d 325, 327 (5th Cir. 2007). E xhaustion is an
affirmative defense ; defendant bears the burden of proving plaintiff failed to
exhaust available administrative remedies. Jones v. Bock , 549 U.S . 199, 216 (2007) ; see also Ross v. Blake , 136 S. Ct. 1850, 1856 (2016) (noting prisoner required to exhaust only available administrative remedie s ). “Exhaustion is defined by the prison’s grievance procedures, and courts neither may add to nor subtract from them.” Cantwell v. Sterling , 788 F.3d 507, 509 (5th Cir. 2015).

Officer Vasquez presented ample and uncontroverted evidence for

summary

- judgment purposes on whether Trojanowski failed to exhaust his
administrative remedies. He received a copy of the prison ’s regulations , Case: 20-10431 Document: 00515994771 Page: 2 Date Filed: 08/25/2021No. 20

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3 detailing the applicable grievance procedure ; he used this procedure several
times before , and after , his assault to challenge other conditions of his
incarceration ; t here is no evidence of a grievance filed against the o fficer ; and Trojanowski fails to show these procedures were unavailable to him.

To the extent Trojanowski contends the court erred in rendering summary judgment before issuing a scheduling order and allowing him to conduct discovery , our court lacks jurisdiction to review the se issue s because they are raised for the first time on appeal

. See Yohey v. Collins , 985 F.2d 222, 225 (5th Cir. 1993) ( stating as general rule our court “does not review issues raised for the first time on appeal” ) ; see also EEOC v. Simba k i, Ltd. , 767 F.3d 475, 484 (5th Cir. 2014 ) (noting pro se litigants required to abide by federal court rules, including those governing present ation of summary

- judgment evidence).

Our court also lacks jurisdiction to consider Trojanowski’s claims against the remaining defendants . The February 2020 dismissal of these claims constituted a partial final judgment. See Fed. R. Civ. P. 54(b) (judgment on multiple claims or involving multiple parties); Briargrove Shopping Ctr. Joint Venture v. Pilgrim Enter s

. , Inc. , 170 F.3d 536, 539

- 41 (5th Cir. 1999) (analyzing whether partial judgment was final)

. A timely notice of appeal is a jurisd ictional prerequisite. See 28 U.S.C. § 2107(a) ( statutorily imposing 30

- day time limit to appeal ) ; Hamer v. Neighborhood Hous. Servs. of
Chi cago , 138 S. Ct. 13, 16

- 17 (2017) ( explaining “appeal filing deadline prescribed by statute . . . regarded as ‘juri sdictional’”)

. Trojanowski filed his notice of appeal in April , and e ven assuming the notice can be read to include all defendants and the February judgment, it was untimely for that judgment

. See Fed. R. App . P. 4( a)(1)(A ) ( prescribing 30

- day time limit ); see also Case: 20-10431 Document: 00515994771 Page: 3 Date Filed: 08/25/2021No. 20

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4 Fed. R. App. P. 3(c)(1)(B) (requiring notice of appeal to designate judgment being appealed).

DISMISSED in part ; AFFIRMED in part

. Case: 20-10431 Document: 00515994771 Page: 4 Date Filed: 08/25/2021