IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-40492

Summary Calendar

CARLOS RAY KIDD,

Plaintiff-Appellant

v.

BRAD LIVINGSTON; LARRY LEFLORE; NATHANIEL QUARTERMAN;

WILLIAM STEVENS; LOYD MASSY; R. BAKER; DWAYNE E. DEWBERRY;

JIMMY O. BOWMAN; JAMES W. DANHEIM; OLIN C. STATHAM; W.

WARREN; JAMES D. TIPPEN; JULIAN E. GODWIN; DAVID M. LARSEN, 

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:09-CV-342

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

Carlos Ray Kidd, Texas prisoner # 1079464, appeals from the summary

judgment dismissal of his 42 U.S.C. § 1983 complaint. A magistrate judge,

proceeding by consent, dismissed the complaint because Kidd failed to exhaust

his administrative remedies. We AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

February 28, 2012

Lyle W. Cayce

Clerk

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. 11-40492

We review grants of summary judgment de novo. Dillon v. Rogers, 596

F.3d 260, 266 (5th Cir. 2010). Kidd contends that a prison official who is not a

party waived the exhaustion defense by testifying, during a Spears hearing, that

Kidd had exhausted his administrative remedies. See Spears v. McCotter, 766

F.2d 179, 181-82 (5th Cir. 1985). A district court generally cannot resolve the

question of exhaustion in a Spears hearing before a responsive pleading is filed

by the defendants. Carbe v. Lappin, 492 F.3d 325, 328 & n.9 (5th Cir. 2007). 

Thus, we conclude that any statement at the Spears hearing about exhaustion

is not controlling. The magistrate judge did not order the defendants to respond

to Kidd’s complaint until more than seven months after the Spears hearing. The

defendants then raised exhaustion in their answer and motion for summary

judgment. Kidd’s argument fails.

Next, Kidd argues that the magistrate judge improperly dismissed the

claims raised in the following three grievances: numbers 2008149508 (# 9508);

2008158983 (# 8983); and 2009052920 (# 2920). He does not present any

challenge to the magistrate judge’s ruling as to two other grievances, numbers

2009052939 and 200916638. Therefore, their dismissals are sustained. See

Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). 

Prisoners are required to exhaust administrative remedies before filing

suit. See 42 U.S.C. § 1997e(a). A prisoner must not only pursue all available

avenues of relief, but he must also comply with all administrative deadlines and

procedural rules. Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). It is the prison’s

requirements, not the Prison Litigation Reform Act, that define the

requirements of exhaustion. Jones v. Bock, 549 U.S. 199, 218 (2007). The Texas

Department of Criminal Justice has developed a two-step grievance process. 

Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004). A grievance must be

pursued through both steps before it can be considered exhausted. Id.

As to grievance # 9508, Kidd concedes he incorrectly filed his Step-2 appeal

by attaching the wrong version of his Step-1 grievance. Because he filed a

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procedurally defective Step-2 appeal, Kidd failed to satisfy the exhaustion

requirement. See Woodford, 548 U.S. at 83-84; Johnson, 385 F.3d at 515. We

will not consider the unprocessed Step-2 form for grievance # 9508 that Kidd

presents for the first time on appeal. See Theriot v. Parish of Jefferson, 185 F.3d

477, 491 n.26 (5th Cir. 1999). 

As to grievance # 8983, Kidd argued in the district court that he timely

filed a Step-2 grievance but that prison officials never returned a processed form

to him. Kidd’s conclusory assertions and production of an unprocessed Step-2

form in the district court failed to create a genuine dispute as to his exhaustion

of this grievance. See Freeman v. Texas Dep’t of Criminal Justice, 369 F.3d 854,

860 (5th Cir. 2004). 

Kidd next argues that, because he experienced ongoing constitutional

violations threatening his safety, his Step-1 and Step-2 forms for grievance

# 2920 exhausted his administrative remedies as to an incident that occurred

more than five months earlier. This is an argument first raised on appeal and

will not be considered. Yohey, 985 F.2d at 224-25.

As in the district court, Kidd seeks a transfer to an out-of-state or federal

prison. Because he does not challenge the substance of the magistrate judge’s

rulings denying injunctive relief, Kidd has abandoned any challenge to those

rulings. See id.; Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744,

748 (5th Cir. 1987). Furthermore, Kidd’s notice of appeal and brief indicate that

he is no longer housed on either the Darrington or Gib Lewis Unit as he was

when he sought injunctive relief in the district court. His transfers from those

units render his claim for injunctive relief moot. See Herman v. Holiday, 238

F.3d 660, 665 (5th Cir. 2001). As to the units where prison officials subsequently

housed Kidd, namely Jester 4 and Polunsky, Kidd has not established

exhaustion of his administrative remedies. See Wright v. Hollingsworth, 260

F.3d 357, 358 (5th Cir. 2001). 

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Because Kidd failed to exhaust his administrative remedies, summary

judgment dismissal was proper. See Woodford, 548 U.S. at 83-84, 90-91;

Johnson, 385 F.3d at 515. 

AFFIRMED.

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