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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

ROBERT GRIZZLE, §

TDCJ No. 01998719, §

§

V. § W-20-CV-183-ADA

§

§

KEVIN STIPES and §

BILLY JACKSON. §

ORDER

Before the Court are Plaintiff Robert Grizzle’s amended complaint filed pursuant to 

42 U.S.C. § 1983 (ECF No. 21); Defendant Billy Jackson’s Motion to Dismiss (ECF No. 12); 

Defendants Kevin Stipes and Billy Jackson’s Motion for Summary Judgment (ECF No. 27); 

Plaintiff’s Response in Opposition (ECF Nos. 29, 32); and Plaintiff’s Motion 56(f) (ECF No. 

31). Grizzle is proceeding pro se and in forma pauperis. Upon review of the parties’ 

pleadings, the Court grants Defendants’ Motions and denies Plaintiff’s Motion 56(f). 

I. Statement of the Case

Plaintiff is currently in custody at the Telford Unit of the Texas Department of 

Criminal Justice-Correctional Institutions Division (TDCJ-CID). Plaintiff alleges that, in 

March and May of 2019 while he was in custody at the Boyd Unit, Captain Kevin Stipe 

found him guilty in two separate disciplinary hearings, but that Stipe was not an impartial 

fact-finder and violated Plaintiff’s constitutional right to procedural due process. Plaintiff 

alleges Assistant Warden Billy Jackson reviewed Plaintiff’s grievance detailing Stipe’s 

behavior at the May 2019 hearing, but nonetheless denied the grievance, which Plaintiff 

claims is also a violation of his procedural due process rights. Plaintiff seeks declaratory 

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relief, along with nominal and punitive damages, and court costs. (ECF No. 21). 

In May 2020, Defendant Jackson filed a Motion to Dismiss (ECF No. 12), which the 

Court converted to a motion for summary judgment (ECF No. 18). Thereafter Defendants 

Stipes and Jackson jointly filed a motion for summary judgment, arguing Plaintiff failed 

to exhaust his administrative remedies for his claim against Jackson, and that both 

Jackson and Stipe are entitled to qualified immunity and Eleventh Amendment immunity. 

(ECF No. 27.) Grizzle file a response in opposition to Defendants’ summary judgment 

motion (ECF No. 29), to which Defendants replied (ECF No. 34) and Plaintiff filed a surreply (ECF No. 36). Plaintiff also filed a Motion 56(f), arguing the Court should not grant 

Defendants’ summary judgment motion because Plaintiff has not had the opportunity to 

complete discovery. (ECF No. 31). 

II. Factual Background

The following facts are undisputed. On March 4, 2019, Officer Ojeda filed an

offense report charging Plaintiff with Discourteous Conduct of a Sexual Nature, alleging 

that Plaintiff was standing at the toilet with his penis out and had exposed his penis to 

Officer Ojeda. (ECF No. 27-1 at 14.) In April 2019, Stipe conducted the disciplinary 

hearing. At the hearing, Plaintiff stated he had been using the restroom, not 

masturbating. On cross-examination by Plaintiff’s counsel-substitute, Ojeda denied 

Plaintiff was doing anything of a sexual nature. Stipe found Plaintiff guilty and sanctioned 

him with loss of 10 days good-time credits, 30 days without commissary and telephone 

privileges, and 30 days of cell restriction. (Id. at 12.) 

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Plaintiff then filed a Step 1 grievance, arguing Stipes should not have found him 

guilty when Ojeda testified Plaintiff’s actions were not sexual in nature. His grievance was 

denied. (Id. at 7-8.) Plaintiff filed a Step 2 grievance appeal, restating his Step 1 

argument. (Id. at 21-22.) The conviction was then overturned based on Stipes’s failure 

to document the justification for his denial of a cross-examination question on the 

appropriate form. (Id. at 24-27.)

On May 10, 2019, Plaintiff was charged with Tampering with a Locking Mechanism. 

(Id. at 63.) Again, Stipes conducted the disciplinary hearing. Plaintiff alleges Stipes 

removed him from the hearing after Stipes overheard Plaintiff telling his counselsubstitute that the officer who witnessed the incident also investigated it, which is a 

violation of TDCJ policy. (ECF No. 21 at 9.) On the hearing worksheet, Stipes writes that 

Plaintiff was not present at the hearing because, among other things, he was being 

argumentative and talking loudly to his counsel-substitute in the hallway. (ECF No. 27-1 

at 62.) Stipes found Plaintiff guilty and sanctioned him with the loss of 120 days goodtime credit, and 45 recreation days. (Id.)

Plaintiff then filed a Step 1 grievance, arguing (1) Stipes violated his constitutional 

rights by not allowing Plaintiff to be present at the hearing and (2) there was a procedural 

error because an officer who was a witness to the incident also performed the 

investigation. Jackson denied the grievance, stating there were no procedural errors and 

there was sufficient evidence supporting a finding of guilt. (Id. at 57-58.) Plaintiff

appealed, repeating the procedural error argument. The conviction was overturned based 

on this error. (Id. at 75-80.) Amy Oliver, a Program Supervisor for TDCJ’s Counsel 

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Substitute program, attested that both of Plaintiff’s disciplinary cases were overturned 

and the assessed punishments were removed from his record. (ECF No. 27-4 at 2.)

III. Discussion & Analysis

1. Summary Judgment

On a motion for summary judgment, a court will render judgment if the evidence 

shows there is no genuine issue of material fact and that the moving party is entitled to 

judgment as a matter of law. See Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996);

Int’l Shortstop, Inc. v. Rally’s Inc., 939 F.2d 1257, 1263 (5th Cir. 1991). When a motion 

for summary judgment is made and supported, an adverse party may not rest upon 

allegations or denials but must set forth specific facts showing there is a genuine issue 

for trial. Ray v. Tandem Computers, Inc., 63 F.3d 429, 433 (5th Cir. 1995); FED. R. CIV.

P. 56. 

Both movants and non-movants bear burdens of proof in the summary judgment 

process. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The movant with the burden of 

proof at trial must establish every essential element of its claim or affirmative defense. 

Id. at 322. The moving party without the burden of proof need only point to the absence 

of evidence on an essential element of the non-movant’s claims or affirmative defenses. 

Id. at 323-24. At that point, the burden shifts to the non-moving party to “go beyond the 

pleadings and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, 

and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for 

trial.’” Id. at 324. The non-moving party cannot rely on general allegations but must 

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produce “specific facts” showing a genuine issue for trial. Tubacex v. M/V Risan, 45 F.3d 

951, 954 (5th Cir. 1995). 

In deciding whether to grant summary judgment, the Court should view the 

evidence in the light most favorable to the party opposing summary judgment and indulge 

all reasonable inferences in favor of that party. See James v. Sadler, 909 F.2d 834, 837 

(5th Cir. 1990). The Fifth Circuit has concluded “[t]he standard of review is not merely 

whether there is a sufficient factual dispute to permit the case to go forward, but whether 

a rational trier of fact could find for the non-moving party based upon the evidence before 

the court.” See id. (citing Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 

574, 586 (1986)). 

2. Qualified Immunity

“A qualified immunity defense alters the usual summary judgment burden of 

proof.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). A government official 

performing a discretionary function is shielded from liability for civil damages so long as 

his actions do not violate a clearly established right of which a reasonable person would 

have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Once an official pleads 

the defense, the burden then shifts to the plaintiff, who must rebut the defense by 

establishing a genuine fact issue as to whether the official’s allegedly wrongful conduct 

violated clearly established law.” Brown, 623 F.3d at 253. The plaintiff must therefore 

present evidence sufficient to create a genuine dispute of material fact as to whether (1) 

the official’s conduct violated a constitutional right of the plaintiff, and (2) the 

constitutional right was clearly established so that a reasonable official in the defendant’s 

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situation would have understood that his conduct violated that right. See id.; Pearson v. 

Callahan, 555 U.S. 223, 232 (2009). For the right to be clearly established, the plaintiff 

must show that defendants had ‘“fair warning” that their specific actions were 

unconstitutional. See Hope v. Pelzer, 536 U.S. 730, 739-40 (2002); see also Ashcroft v. 

al-Kidd, 563 U.S. 731, 741-42 (2011) (relevant right is not defined at high level of 

generality; rather, “existing precedent must have placed the statutory or constitutional 

question beyond debate”). 

In considering a qualified immunity defense, the Court must view the evidence in 

the light most favorable to the non-movant and draw all inferences in the non-movant’s 

favor, see Rosado v. Deters, 5 F.3d 119, 122-23 (5th Cir. 1993), and cannot make 

credibility determinations or weigh the evidence, see Reeves v. Sanderson Plumbing 

Prods., Inc., 530 U.S. 133, 150 (2000).

3. Eleventh Amendment Immunity

Pursuant to the Eleventh Amendment, federal courts are without jurisdiction over 

suits against a state unless that state has waived its sovereign immunity or Congress has 

clearly abrogated it. Moore v. La. Bd. of Elementary and Secondary Educ., 743 F.3d 959, 

963 (5th Cir. 2014). A federal court may, however, “enjoin a state official in his official 

capacity from taking future actions in furtherance of a state law that offends federal law 

or the federal Constitution.” Moore, 743 F.3d at 963 (citing Idaho v. Coeur d’Alene Tribe 

of Idaho, 521 U.S. 261, 269 (1997)). A suit against a state official in their official capacity 

is no different than a suit against the state itself. Green v. State Bar of Tex., 27 F.3d 

1083, 1087 (5th Cir. 1994). A state’s sovereign immunity under the Eleventh Amendment 

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may not be evaded by suing state agencies or state employees in their official capacity 

because such a claim is essentially against the state itself. Id. Accordingly, Defendants 

are entitled to Eleventh Amendment immunity on Plaintiff’s claims against them in their 

official capacities for monetary relief. 

4. Failure to Exhaust Administrative Remedies

The Prisoner Litigation Reform Act requires state prisoners to exhaust available 

administrative remedies prior to filing suit under § 1983. 42 U.S.C. § 1997e(a) (“No action 

shall be brought with respect to prison conditions under section 1983 of this title, or any 

other Federal law, by a prisoners confined in any jail, prison, or other correctional facility 

until such administrative remedies as are available are exhausted.”). Exhaustion is 

mandatory and unexhausted claims will not be considered by the federal courts. Jones v. 

Bock, 549 U.S. 199, 199 (2007); Woodford v. Ngo, 548 U.S. 81, 85 (2006); see also

Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012) (“District courts have no discretion 

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

filing their complaint.”). 

The only exception to the exhaustion requirement is when administrative remedies 

are unavailable. Ross v. Blake, 136 S. Ct. 1850, 1859 (2016). Administrative remedies are 

“unavailable” in three circumstances: (1) when the administrative procedure is “a simple 

dead end”, i.e. prison officials are unable or unwilling to provide relief to inmates; (2) 

when the administrative procedure is complex or confusing such that “it becomes, . . . 

incapable of use”; and (3) when prison officials thwart the grievance process through 

“machination, misrepresentation, or intimidation.” Id. at 1859-60. 

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Defendants argues Plaintiff failed to exhaust his administrative remedies regarding 

his claim that Jackson violated his procedural due process rights when Jackson denied 

his Step 1 grievance. As described by defendants, TDCJ’s two-step administrative 

grievance process requires prisoners first file a Step 1 grievance within fifteen days of the 

alleged incident or challenged event, which is then reviewed by officials at the prisoner’s

assigned facility. After the prisoner receives a response to his Step 1 grievance, he has 

fifteen days to file a Step 2 grievance, which appeals an unfavorable result to the state 

level. (ECF No. 27 at 5.)

Plaintiff asserts the grievance process was unavailable to him because he did not 

receive Jackson’s response until after the fifteen-day period had passed for filing a timely 

grievance. Plaintiff also asserts this delay was a “machination,” implying Jackson 

intentionally delayed it. Plaintiff further alleges he did file a Step 1 grievance against 

Jackson, but that it was screened and returned to Plaintiff as untimely. (ECF No. 32 at 2-

3.) 

There is no evidence in the record showing that Plaintiff filed any grievance against 

Jackson between March 1 and August 30, 2019. (ECF No. 27-1 at 2.) Plaintiff’s conclusory 

and unsupported allegations that (1) Jackson intentionally delayed returning his response 

to Plaintiff’s grievance until after the filing deadline and (2) that Plaintiff filed a Step 1 

grievance against Jackson that was returned as untimely filed are insufficient to overcome 

Defendant’s summary judgment evidence. See Turner v. Baylor Richardson Med. Ctr., 

476 F.3d 337, 343 (5th Cir. 2007) (“a party cannot defeat summary judgment with 

conclusory allegations, unsubstantiated assertions, or ‘only a scintilla of evidence’”) 

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(citation omitted). Based on the record before it, the Court concludes Plaintiff failed to 

exhaust his administrative remedies against Defendant Jackson and this claim is

dismissed without prejudice.1

5. Procedural Due Process

Plaintiff claims Defendant Stipes violated his Fourteenth Amendment right to 

procedural due process when they convicted him of the charge of discourteous conduct 

of a sexual charge nature despite the charging officer testifying that Plaintiff’s conduct 

was not sexual; and by not allowing Plaintiff to be present at the hearing for the 

tampering charge; and by convicting Plaintiff of the tampering charge despite knowing 

that the investigating officer was also a witness to the incident. Stipes responds that 

Plaintiff’s due process rights were not violated because both charges and related 

sanctions were overturned and removed from Plaintiff’s record.

“The Fourteenth Amendment’s Due Process Clause protects persons against 

deprivations of life, liberty, or property; and those who seek to invoke its procedural 

protection must first establish that one of these interests is at stake.” Wilkinson v. Austin, 

545 U.S. 209, 221 (2005). Defendant argues that because both of Plaintiff’s disciplinary 

convictions were overturned on appeal, any due process violations that occurred have 

been cured. In response, Plaintiff argues that a “post-deprivation hearing” cannot remedy 

a due process violation in the original hearing. (ECF No. 32 at 9.) 

1 Even if Plaintiff had fully exhausted his claims against Defendant Jackson, the claims 

would be denied based on qualified immunity for the reasons explained in this order. 

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The Court agrees with Defendant. “The [C]onstitution demands due process, not 

error-free decision-making . . . .” McCrae v. Hankins, 720 F.2d 863, 868 (5th Cir. 1983).

As the summary judgment record shows, the procedural errors that occurred in the April 

and May 2019 hearings were ultimately cured via the administrative appeals process, and 

the convictions and sanctions were removed from Plaintiff’s record. Accordingly, Plaintiff 

cannot show that his due process rights were violated. See Ard v. Leblanc, 404 F. App’x

928, 929 (5th Cir. 2010) (any error in prisoner’s disciplinary case was cured when case 

was overturned through his administrative appeal); see also Wycoff v. Nichols, 94 F.3d

1187, 1189 (8th Cir. 1996) (administrative reversal constituted part of the due process 

the prisoner received and cured the alleged due process violation); Morissette v. Peters,

45 F.3d 1119, 1122 (7th Cir. 1995) (no denial of due process if the error the inmate 

complains of is corrected in the administrative appeal process; appeals process is part of 

the process afforded prisoners); Young v. Hoffman, 970 F.2d 1154, 1156 (2d Cir. 1992)

(administrative reversal constitutes part of due process prisoner received and cured any 

procedural defects that might have occurred). Therefore, Plaintiff has failed to show any 

constitutional violation whatsoever, and Defendant Stipe is entitled to qualified immunity. 

6. Plaintiff’s Motion 56(f)

Finally, Plaintiff has filed a motion pursuant to Federal Rule of Civil Procedure 56(f) 

(Judgment Independent of the Motion), arguing the Court should not grant Defendants’ 

summary judgment motion because he has not had sufficient opportunity to conduct 

discovery. (ECF No. 31.) Plaintiff argues he needs more discovery so he can show that 

the Step 1 grievance procedure at TDCJ is the kind of “dead end” contemplated in Ross

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v. Blake. On the contrary, however, Plaintiff’s own case shows that, at least on some 

occasions, TDCJ’s grievance procedure is not a dead end: both Plaintiff’s disciplinary 

hearings were overturned upon further review. As a result, there is no need for further 

discovery and this motion is denied. 

IV. Conclusion

It is therefore ORDERED that Defendants’ Motion for Summary Judgment (ECF 

No. 27) is GRANTED, Defendants’ Motion to Dismiss (ECF No. 12) is DISMISSED, and 

Plaintiff’s Motion 56(f) is DENIED. 

SIGNED on March 10, 2021

ALAN D ALBRIGHT

UNITED STATES DISTRICT JUDGE

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