# United States Court **of Appeals**  **f or 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 J ustice , 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* Pursuant to **5th Circuit Rule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Circuit Rule** 47.5.4.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 Case: 20-40570 Document: 00516426648 Page: 1 Date Filed: 08/10/2022No. 20

- 40570

2 alleging they violated his constitutional rights when they withdrew money
from his inmate trust fund to pay a n annual medical co

- pa y. The district

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

A mendment and his claims for injunctive relief as unexhausted. We

**AFFIRM**

.
**FACTUAL AND PROCEDURAL BACKGROUND**
On August 3, 2017, Pam ela 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
Simon s ’s account

. The deduction was made to pay an annual medical co

- pay f

ee. 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 receiv ed a response. On November 7, 2017, he filed a Step 1 G rievance F orm with TDCJ regarding the withdrawal. TDCJ rejected the grievance as untimely, so he filed a Step 2 G rievance F orm on November 14, 2017, which was also rejected.

Simons filed an other I

- 60 inmate request just under a year later on September 31, 2018 with Eric Johns t on, the Director of the Inmate Commissary and Trust F und s for TDCJ , regarding the allegedly improper
withdrawal s

. Johns t on also did not respond.
On July 5, 2018, Si mmons filed a pro se complaint under 42
U.S.C. § 1983 to continue challenging th ese withdrawal s . He brought the suit against Johns t on, Pace, and Lori e 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
relie f

. Case: 20-40570 Document: 00516426648 Page: 2 Date Filed: 08/10/2022No. 20

- 40570

3 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 recommend ed di smissing Simon s ’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
Simon s ’s claims for injunctive relief . They argu ed that Simons had not
exhausted his claims through the TDCJ ’s two

- step grievance procedure. The magistrate judge issued a report and recommendation that
recommend ed granting the defendants’ motion for summary judgment.
Simons filed objections, but the district court agreed with the magistrate judge and granted summary judgment on Simon s ’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 C ir. 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 fai ls 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, 5 70 (2007). D ismiss al 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 , 70 3 (5th Cir. 2018) (citation omitted). Case: 20-40570 Document: 00516426648 Page: 3 Date Filed: 08/10/2022No. 20

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4 When re viewing 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)

. Summar y 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

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

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

We start with Simon s ’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). D ismissing Simon s ’s claims for money damages was correct

. Summary judgment was granted on Simon s ’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 f or 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 G rievance Form , he may appeal through a Step 2 Grievance F orm , which must be filed within 15 days of the date the Step 1 G rievance Form was returned to the inmate. Case: 20-40570 Document: 00516426648 Page: 4 Date Filed: 08/10/2022No. 20

- 40570

5 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 Grieva nce F orm, 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.

**AFFIRM ED** 

. Case: 20-40570 Document: 00516426648 Page: 5 Date Filed: 08/10/2022