United States Court of Appeals

for the Fifth Circuit ____________

No. 22-40695

Summary Calendar

____________

Frank W. Rodriguez, Jr., 

Plaintiff—Appellant, 

versus

Mohamad Touhami; John Doe One; John Doe Two; John 

Doe Three; Joe Collins; Frank Rigsby, 

Defendants—Appellees. 

______________________________

Appeal from the United States District Court 

for the Eastern District of Texas

USDC No. 9:20-CV-140

______________________________

Before Davis, Stewart, and Oldham, Circuit Judges.

Per Curiam:*

Frank W. Rodriguez, Jr., Texas prisoner # 01667156, appeals the 

district court’s dismissal of his 42 U.S.C. § 1983 suit after granting the 

motion for summary judgment filed by defendant Mohamad Touhami. In his 

suit, Rodriguez alleged that Touhami and other correctional officers used 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

August 1, 2023

Lyle W. Cayce

Clerk

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No. 22-40695

2

excessive force against Rodriguez and that other officers witnessed the 

incident and failed to intervene. 

Rodriguez argues that the district court erred in its finding that he 

failed to exhaust administrative remedies before filing the instant suit. He 

contends that he should be excepted from the exhaustion requirement 

because the defendants engaged in a conspiracy to prevent him from filing 

grievances. Rodriguez further avers that filing a grievance would have been 

futile and that he was unable to file a grievance because he was in solitary 

confinement at some point and lacked supplies such as a pen. 

“We review the grant of summary judgment de novo, applying the 

same standards as the district court.” Dillon v. Rogers, 596 F.3d 260, 266 (5th 

Cir. 2010) (internal quotation marks and citation omitted). In general, 

summary judgment is appropriate if the record discloses “that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment 

as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 

U.S. 317, 322 (1986). All facts and inferences are construed in the light most 

favorable to the nonmoving party. Poole v. City of Shreveport, 691 F.3d 624, 

627 (5th Cir. 2012).

Rodriguez has not demonstrated a genuine factual dispute regarding 

his claim that he should be excepted from the exhaustion requirement 

because: (1) it would have been futile to file grievances; (2) he was in 

segregation and lacked writing supplies; and (3) the defendants conspired to 

impede his access to grievance forms. These assertions are conclusional and, 

even if accepted as true, are belied by the record, especially by the numerous 

grievances Rodriguez filed after the alleged use-of-force incident, albeit 

related to different claims. See Ross v. Blake, 578 U.S. 632, 643-44 (2016);

Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010); Alexander v. Tippah 

Cnty., 351 F.3d 626, 630 (5th Cir. 2003); Geiger v. Jowers, 404 F.3d 371, 374 

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(5th Cir. 2005); Ferrington v. La. Dep’t of Corrs., 315 F.3d 529, 532 (5th Cir. 

2002). 

Additionally, Rodriguez seemingly argues that he exhausted his 

administrative remedies because he backdated his grievance. Because he did 

not raise that argument in the district court, we review only for plain error. 

See Crawford v. Falcon Drilling Co., 131 F.3d 1120, 1123 (5th Cir. 1997). 

However, Rodriguez has not demonstrated any reversible error related to his 

backdating argument. See id.

In light of the foregoing discussion and construing the facts in his 

favor, Rodriguez has not shown a genuine factual dispute related to his failure 

to exhaust administrative remedies and, therefore, the district court did not 

err in granting Touhami’s motion for summary judgment. See Celotex Corp., 

477 U.S. at 322; Poole, 691 F.3d at 627.

Rodriguez also argues that the district court erred in denying his 

motion for appointment of counsel. However, he has not shown exceptional 

circumstances that merited appointment of counsel, and thus, the district 

court did not abuse its discretion in denying the motion. See Naranjo v. 

Thompson, 809 F.3d 793, 799 (5th Cir. 2015).

The judgment of the district court is AFFIRMED.

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