IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-60311

Summary Calendar

DERRICK SUMRALL,

Plaintiff-Appellant

v.

MARCUS DAVIS; DEMTRE RAY; JOHN DOE JOHNSON; TIMOTHY 

MORRIS; LT. THIGPEN,

Defendants-Appellees

______________________

DERRICK SUMRALL,

Plaintiff-Appellant

v.

MARCUS DAVIS; DEMTRE RAY; JOHN DOE JOHNSON; JOHN DOE 

MEGATRON; TIMOTHY MORRIS; WENDELL BANKS; LT. THIGPEN,

Defendants-Appellees

Appeals from the United States District Court

for the Northern District of Mississippi

USDC No. 4:16-CV-34

USDC No. 4:16-CV-47

United States Court of Appeals

Fifth Circuit

FILED

May 16, 2019

Lyle W. Cayce

Clerk

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No. 18-60311

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Before JOLLY, COSTA, and HO, Circuit Judges.

PER CURIAM:*

Derrick Sumrall, formerly inmate # R8429 in the custody of the 

Mississippi Department of Corrections, appeals the summary judgment 

dismissal without prejudice of his 42 U.S.C. § 1983 civil rights action. The 

district court determined that Sumrall failed to exhaust his available 

administrative remedies. 

Sumrall does not contest the district court’s conclusion that the 

Mississippi Department of Corrections’ administrative remedy program was 

available to him, because an ordinary prisoner could discern or navigate the 

process. Nor does he challenge the district court’s finding that he failed to 

exhaust the available administrative remedies by failing to properly refile his 

grievance. Lastly, Sumrall does not renew his arguments before the district 

court that special circumstances – specifically the Appellees’ failure to inform 

him in any understandable language that he needed to refile his 

administrative remedy grievance – justified his failure to comply with the 

administrative remedy program procedures. As such, Sumrall has abandoned 

these issues on appeal. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 

1993).

Rather, Sumrall alleges that the Mississippi Department of Correction’s 

administrative remedy was unavailable to him because he did not receive 

notice of the inadequacy of his grievance within the administrative remedy

program’s five (5) day time limit for him to make corrections. Sumrall’s 

arguments and factual allegations were not raised before the district court and, 

 

* 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.

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No. 18-60311

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thus, should not be considered by this court for the first time on appeal. James 

v. McCaw Cellular Commc’ns, Inc., 988 F.2d 583, 585 (5th Cir. 1993); see also 

Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986) (attorney-prepared briefs 

not entitled to benefit of liberal construction). Nevertheless, Sumrall’s 

argument is unavailing in that it is based upon a misinterpretation or 

misreading of the applicable administrative remedy program. See Miss. Dep’t 

of Corrections, Inmate Handbook, available at

https://www.mdoc.ms.gov/Inmate-Info/Documents/CHAPTER_VIII.pdf (“If a 

request is rejected for technical reasons or matters of form, the inmate shall 

have five days from the date of rejection to file his/her corrected grievance.”). 

Sumrall failed to show the existence of a genuine issue of material fact in 

dispute regarding his failure to exhaust his administrative remedies or the 

availability of those remedies. Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 

2010). 

Accordingly, the district court’s judgment is AFFIRMED.

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