IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10285

Summary Calendar

JAVARY TREYMAYNE TRIGG,

Plaintiff–Appellant,

v.

FREDDY WIGINTON, also known as Wiginton; KENNY DEAN, also known 

as Dean,

Defendants–Appellees.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:10-CV-1962

Before PRADO, OWEN, and GRAVES, Circuit Judges.

PER CURIAM:*

Javary Treymayne Trigg, federal prisoner # 33637-177, appeals the 

district court’s dismissal of his Bivens action for failure to exhaust his 

administrative remedies.1 Trigg argues that the district court erred when it 

* 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.

1 See 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 524 (2002) (holding that the 

exhaustion requirement of 42 U.S.C. § 1997e(a) applies to Bivens suits).

United States Court of Appeals

Fifth Circuit

FILED

April 28, 2015

Lyle W. Cayce

Clerk

 

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shifted the burden of proof. He also argues that he was not required to exhaust 

unavailable administrative remedies.

Trigg argues that the district court improperly shifted the burden of 

proof in his case when it required him to establish that the remedies were 

available. Because Trigg did not raise this argument in his objections to the 

magistrate judge’s report and recommendation, we review it for plain error.2 

The record reveals that after conducting an evidentiary hearing,3 the district 

court determined that the defendants established that Trigg failed to exhaust 

his administrative remedies when he failed to file the BP-9 form necessary to

initiate the formal administrative review process and that Trigg failed to 

establish that a BP-9 form was unavailable.4 Trigg has therefore failed to show 

that the district court committed any error, much less plain error, with respect 

to the burden of proof. 

Trigg next argues that because the BP-9 form was unavailable, he was 

not required to exhaust his administrative remedies. Because Trigg raised this 

argument in the district court, we review the district court’s legal rulings de 

novo and its factual findings for clear error.5 As the district court found, Trigg’s 

own testimony defeats his claim. At the evidentiary hearing, Trigg admitted 

that (1) he was familiar with the administrative remedy process, (2) he knew 

he had to file the BP-9 form as part of that process, (3) he twice asked his 

counselor for the BP-9 form, (4) he could have asked another counselor for the 

2 Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc), 

superseded by statute on other grounds, 28 U.S.C. § 636(b)(1), as recognized in Shelby v. City 

of El Paso, Tex., 577 F. App’x 327, 331 (5th Cir. 2014) (per curiam).

3 See Dillon v. Rogers, 596 F.3d 260, 273 (5th Cir. 2010).

4 See Jones v. Bock, 549 U.S. 199, 216 (2007); Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 

1994) (per curiam) (citing Gardner v. Sch. Bd. Caddo Parish, 958 F.2d 108, 112 (5th Cir. 

1992)).

5 Dillon, 596 F.3d at 273.

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BP-9 form, and (5) he asked for and received the BP-10 form. Moreover, Trigg 

stated that he filed the BP-10 form because he believed he had accomplished 

the purpose of the BP-9 form by making the warden aware of his grievance. 

Trigg’s argument that he proceeded with the BP-10 form because his 

grievance was sensitive is also contradicted by the record; Trigg never testified 

that he believed his safety or well-being would be jeopardized if his request 

became known at the prison. Furthermore, Trigg’s frequent attempts to tell 

his side of the story to various prison officials belies such an assertion. 

Finally, Trigg’s argument that the warden threatened to transfer him if 

he pursued his grievance is also unavailing. Even if the warden threatened 

Trigg, she did not do so until the deadline for submitting the BP-9 form had 

passed.6 Thus, Trigg cannot establish that he failed to timely file the BP-9 

form because of the warden’s alleged threat.

Notwithstanding the foregoing, even if Trigg has established that the 

BP-9 form was unavailable, his claim still fails for failure to exhaust.7 A

prisoner has not exhausted his administrative remedies until his claim has 

been filed and denied at all levels.8 When his BP-10 form was denied because 

it was not sensitive, Trigg was required to either submit a BP-9 form to the 

6 See 28 C.F.R. § 542.14(a).

7 See Wilson v. Epps, 776 F.3d 296, 301 (5th Cir. 2015) (“Section 1997e's exhaustion 

requirement is satisfied only if the prisoner ‘pursue[s] the grievance remedy to conclusion.’

This requirement does not fall by the wayside in the event that the prison fails to respond to 

the prisoner's grievance at some preliminary step in the grievance process. Instead, the 

prison's failure to timely respond simply entitles the prisoner to move on to the next step in 

the process. Thus, it is only if the prison fails to respond at the last step of the grievance 

process that the prisoner becomes entitled to sue, because then there is no next step (save 

filing a lawsuit) to which the prisoner can advance.” (quoting Wright v. Hollingsworth, 260 

F.3d 357, 358 (5th Cir.2001))); see also Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012) 

(per curiam); Dillon v. Rogers, 596 F.3d 260, 267 & n.1 (5th Cir. 2010).

8 See 28 C.F.R. § 542.15; 42 U.S.C. § 1997(e)(a). 

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warden or appeal the rejection to the next appeal level via a BP-11 form.9 

Because Trigg never filed a BP-11 form, he did not exhaust his administrative 

remedies.10 

AFFIRMED.

9 28 C.F.R. §§ 542.14(d)(1), 542.15(a), 542.17(c).

10 See 28 CFR § 542.15. 

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