United States Court of Appeals

for the Fifth Circuit

No. 20-40570

Summary Calendar

Richard Simons, 

Plaintiff—Appellant,

versus

Lorie Davis, Director, Texas Department of Criminal Justice, Correctional 

Institutions Division; Eric Johnston, Director, Texas Department of 

Criminal Justice Inmate Commissary and Trust Funds; Pamela Pace, 

Practice Manager, University of Texas Medical Branch/Michael Unit, 

Defendants—Appellees.

Appeal from the United States District Court 

for the Eastern District of Texas

USDC No. 6:18-CV-328

Before Southwick, Oldham, and Wilson, Circuit Judges.

Per Curiam:*

Richard Simons, an inmate in the custody of the Texas Department of 

Criminal Justice, brings a Section 1983 suit against three prison officials

* 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opinion should not be published and is not precedent except under the limited 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 10, 2022

Lyle W. Cayce

Clerk

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alleging they violated his constitutional rights when they withdrew money

from his inmate trust fund to pay an annual medical co-pay. The district 

court dismissed his claims for money damages as barred by the Eleventh 

Amendment and his claims for injunctive relief as unexhausted. We 

AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

On August 3, 2017, Pamela Pace, the Michael Unit practice manager 

at the Texas Department of Criminal Justice, Correctional Institutions 

Division (“TDCJ”) authorized a deduction of $100 from inmate Richard 

Simons’s account. The deduction was made to pay an annual medical co-pay 

fee. Simons believed this withdrawal and other related withdrawals were

improper because the funds in his account were exempt from garnishment. 

He says he filed an interoffice communication form, known as an I-60 inmate 

request, with Pace but never received a response. On November 7, 2017, he 

filed a Step 1 Grievance Form with TDCJ regarding the withdrawal. TDCJ 

rejected the grievance as untimely, so he filed a Step 2 Grievance Form on 

November 14, 2017, which was also rejected. 

Simons filed another I-60 inmate request just under a year later on 

September 31, 2018 with Eric Johnston, the Director of the Inmate 

Commissary and Trust Funds for TDCJ, regarding the allegedly improper 

withdrawals. Johnston also did not respond. 

On July 5, 2018, Simmons filed a pro se complaint under 42 

U.S.C. § 1983 to continue challenging these withdrawals. He brought the 

suit against Johnston, Pace, and Lorie Davis, the Director of TDCJ, and

claimed the withdrawal violated his constitutional rights. See 38 

U.S.C. § 5301; Simons sought both unspecified monetary and injunctive 

relief. 

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The defendants moved to dismiss Simons’s claims under Federal 

Rules of Civil Procedure 12(b)(1) and 12(b)(6). The motion was referred to 

a magistrate judge, who recommended dismissing Simons’s claims for 

monetary relief because they were barred under the Eleventh Amendment. 

The district court agreed and dismissed Simons’s claims to the extent he 

sought money damages from the defendants. 

The defendants then filed a motion for summary judgment on 

Simons’s claims for injunctive relief. They argued that Simons had not 

exhausted his claims through the TDCJ’s two-step grievance procedure. 

The magistrate judge issued a report and recommendation that

recommended granting the defendants’ motion for summary judgment. 

Simons filed objections, but the district court agreed with the magistrate 

judge and granted summary judgment on Simons’s remaining claims.

Simons appealed both the grant of summary judgment and prior dismissal. 

DISCUSSION

“We review both a motion to dismiss and a motion for summary 

judgment under a de novo standard of review.” St. Paul Mercury Ins. Co. v. 

Williamson, 224 F.3d 425, 440 n.8 (5th Cir. 2000). When reviewing a motion 

to dismiss, we “accept[] all well-pleaded facts as true, viewing them in the 

light most favorable to the plaintiff.” In re Katrina Canal Breaches Litig., 495 

F.3d 191, 205 (5th Cir. 2007) (quotation marks and citations omitted). 

Dismissal under Rule 12(b)(6) is appropriate where the plaintiff fails to plead

“enough facts to state a claim to relief that is plausible on its face.” See Bell 

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Dismissal for lack of subject 

matter jurisdiction under Rule 12(b)(1) is proper “when the court lacks the 

statutory or constitutional power to adjudicate the claim.” Griener v. United 

States, 900 F.3d 700, 703 (5th Cir. 2018) (citation omitted). 

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When reviewing a grant of summary judgment, we “view[] all 

evidence in the light most favorable to the nonmoving party and draw[] all 

reasonable inferences in that party’s favor.” Kariuki v. Tarango, 709 F.3d 

495, 501 (5th Cir. 2013) (citation omitted). Summary judgment is proper

where “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). A genuine 

dispute of material fact exists “if the evidence is such that a reasonable jury 

could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 248 (1986). 

We start with Simons’s claims for money damages against the 

defendants. The Eleventh Amendment bars suits for money damages against 

the defendants in their official capacities as employees because TDCJ is an 

instrumentality of the state. See Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 

2002). Dismissing Simons’s claims for money damages was correct.

Summary judgment was granted on Simons’s remaining claims for 

injunctive relief because he failed to exhaust all administrative remedies. The 

Prison Litigation Reform Act requires a prisoner to exhaust his 

administrative remedies before bringing a Section 1983 suit. Johnson v. 

Johnson, 385 F.3d 503, 515 (5th Cir. 2004) (citing 42 U.S.C. § 1997e(a)). To 

exhaust a claim, a prisoner must comply with the agency’s “deadlines and 

other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 90–91 (2006).

TDCJ has a two-step grievance process for inmates who wish to raise 

a complaint. First, the inmate must file a Step 1 Grievance Form within 15 

days of the date of the incident or occurrence of the issue. If the inmate is 

not satisfied with the response to his Step 1 Grievance Form, he may appeal 

through a Step 2 Grievance Form, which must be filed within 15 days of the 

date the Step 1 Grievance Form was returned to the inmate.

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The record shows Simons filed his Step 1 Grievance Form on 

November 7, 2017 — approximately three months after the withdrawal 

occurred. Simons therefore did not meet the deadline to file his Step 1

Grievance Form and did not exhaust his administrative remedies. Contrary 

to Simons’s argument that his I-60 form tolled the 15-day period to file a Step 

1 Grievance Form, there appears to be no such provision in TDCJ’s 

grievance policy, and Simons does not identify one. The district court cannot 

excuse a prisoner’s failure to properly exhaust the prison grievance process 

before filing a complaint. See Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 

2012). Accordingly, the district court did not err in granting summary 

judgment on Simons’s claims for injunctive relief for failure to exhaust his 

administrative remedies. 

AFFIRMED.

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