United States Court of Appeals

for 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 unnamed captain, and 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 25, 2021

Lyle W. Cayce

Clerk

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another defendant were connected to a cover-up of the assault and prevented 

him from exhausting his administrative remedies. Proceeding pro se, he 

appeals the dismissal of his claims.

In February 2020, the 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 exhaust his administrative 

remedies; and the officer 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). Exhaustion 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 remedies). “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, 

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detailing the applicable grievance procedure; he used this procedure several

times before, and after, his assault to challenge other conditions of his 

incarceration; there is no evidence of a grievance filed against the officer; 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 these issues 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. Simbaki, Ltd., 767 F.3d 

475, 484 (5th Cir. 2014) (noting pro se litigants required to abide by federal 

court rules, including those governing presentation 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 Enters., Inc., 170 F.3d 536, 539-41 (5th 

Cir. 1999) (analyzing whether partial judgment was final). A timely notice of 

appeal is a jurisdictional prerequisite. See 28 U.S.C. § 2107(a) (statutorily 

imposing 30-day time limit to appeal); Hamer v. Neighborhood Hous. Servs. of 

Chicago, 138 S. Ct. 13, 16-17 (2017) (explaining “appeal filing deadline 

prescribed by statute . . . regarded as ‘jurisdictional’”). Trojanowski filed his 

notice of appeal in April, and even 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

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

judgment being appealed). 

DISMISSED in part; AFFIRMED in part. 

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