IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-10398

Summary Calendar

JAY ANTHONY NOTTINGHAM, also known as Jay Nottingham, also known 

as Jay Thrasher, also known as James Andrew Armstrong, also known as Jeff 

Andrew Montgomery, also known as Jeffrey Montgomery, also known as Jay 

Dillan, also known as Sterling Armstrong Harrison, also known as Jay Dillian, 

also known as Jay Hamilton Sterling, also known as Jay Anthony Mottingham, 

also known as Jay Nothingham, also known as Hunter O'Brian, also known as 

Jay A. Nottingham, also known as Jeffery Andrew Montgomery, also known as 

Sterling Harrison, also known as Jay Anthony Nuttingham,

Plaintiff-Appellant

v.

JOEL FINSTERWALD, Sheriff of Wheeler County; CARRIE GAINES, 

Wheeler County Jail Administrator; WHEELER COUNTY,

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 2:10-CV-23

Before STEWART, Chief Judge, and SOUTHWICK and HIGGINSON, Circuit 

Judges.

PER CURIAM:*

* 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.

United States Court of Appeals

Fifth Circuit

FILED

September 10, 2014

Lyle W. Cayce

Clerk

 

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No. 13-10398

Jay Anthony Nottingham, former Texas prisoner # 1490726, appeals the 

dismissal of his 42 U.S.C. § 1983 complaint for failure to exhaust 

administrative remedies. Proceeding with the parties’ consent pursuant to 28 

U.S.C. § 636(c), the magistrate judge (MJ) granted Defendants’ motion for 

summary judgment and dismissed Nottingham’s complaint without prejudice.

We review a summary judgment ruling de novo, using the same standard 

employed by the district court. Carnaby v. City of Houston, 636 F.3d 183, 187 

(5th Cir. 2011). Pursuant to the Prison Litigation Reform Act (PLRA), 

“prisoners must properly exhaust ‘such administrative remedies as are 

available’ prior to filing a section 1983 action concerning prison conditions.” 

Dillon v. Rogers, 596 F.3d 260, 265 (5th Cir. 2010) (quoting 42 U.S.C. 

§ 1997e(a)). When a defendant asserts the affirmative defense of exhaustion, 

the district court should rule on this issue before allowing the case to proceed 

to the merits. Id. at 272-73. In making this ruling, the district court may act 

as the factfinder and resolve disputed facts concerning exhaustion without the 

participation of a jury. Id. We review the district court’s ruling on exhaustion 

de novo and its factual findings for clear error. Id. at 273.

Failure to exhaust administrative remedies is an affirmative defense 

that can be waived if not asserted by the defendant. Jones v. Bock, 549 U.S. 

199, 216 (2007); Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007). The MJ 

correctly concluded that Defendants did not waive the defense because they 

raised it at a pragmatically sufficient time and Nottingham was not prejudiced 

in his ability to respond. See Vanhoy v. United States, 514 F.3d 447, 450-51

(5th Cir. 2008). 

The MJ was permitted to resolve the disputed factual issues regarding 

exhaustion without the participation of a jury. See Dillon, 596 F.3d at 272-73. 

The MJ found that that Nottingham did not file or attempt to file any 

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No. 13-10398

grievances as he stated in his original complaint. This finding was plausible 

in light of the timing and contradictory nature of Nottingham’s later assertions 

that he did file grievances as well as Defendants’ evidence setting forth the 

grievance procedure at the Wheeler County Jail and Nottingham’s knowledge 

of and failure to avail himself of this procedure. Therefore, the MJ’s finding 

that Nottingham did not exhaust his administrative remedies was not clearly 

erroneous. See id. at 272-73. 

As to his remaining arguments, Nottingham offers only unsupported 

assertions regarding the availability of administrative remedies once he was 

transferred to another jail. The “extraordinary circumstances” of his case,

which he asserts necessitated his transfer from the Wheeler County Jail to a 

facility that could house a disabled pretrial detainee, do not excuse his failure 

to exhaust. See Dillon, 596 F.3d at 270. The MJ did not err by dismissing 

Nottingham’s complaint for failure to exhaust administrative remedies. 

The judgment is AFFIRMED.

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