# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 20

- 50666

**Troy Daniel Thoele,** Plaintiff

— Appellant **,**

versus **Bryan Collier,** in his official capacity as TDCJ Executive Director **; Doctor Lanette Linthicum,**  In her official capacity as TDCJ Health Services Director **; Warden Deborah Cockerall,** in her official capacity as Warden of Boyd Unit **; Texas Department of Criminal Justice; University of Texas Medical Branch,**  Defendants

— Appellees

**.**

Appeal from the United States District Court for the Western District of Texas USDC No. 6: 2 0

- CV

- 364

Before **Smith, Costa,** and **Wilson,** Circuit Judges

**. Per Curiam**  **:** * Troy Daniel Thoele sued the Texas Department of Criminal Justice and several of its officials over prison conditions during the COVID

- 19

* Pursuant to **5th Circuit Rule** 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Circuit Rule** 47.5.4.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 March 9, 2022 Lyle W. Cayce Clerk Case: 20-50666 Document: 00516231999 Page: 1 Date Filed: 03/09/2022No. 20

- 50666

2 pandemic

. The district court dismissed the suit because Thoele failed to exhaust his administrative remedies under the Prisoner Litigation Reform Act (PLRA)

. W e **AFFIRM**

. I In early May 2020, Thoele and three other inmates

— Gregory Boon e, Matthew Hansberger, and Ruben Yban e z
— sued the individuals and entities (collectively, TDCJ) responsible for ensuring the health and safety of the inmates at their unit

. The complaint alleges they suffer from pre

- existing medical conditions that heighte n the risk of severe illness or death from COVID

- 19

. It claims that TDC J failed to provide reasonable accommodations for their comorbidities and take other precautions against the COVID

- 19 pandemic and, in so doing, violated their rights under the Eighth and Fourteenth Amendment s , the Americans with Disabilities Act, and the Rehabilitation Act

. The next month , the inmates filed a “Memorandum On PLRA Exhaustion. ” T he M emorandum detail s the PLRA’s requirement that an inmate exhaust all available administrative remedies before filing suit in federal court

. It outline s the TDCJ ’s two

- step grievance procedure, which includes “a ‘Step 1 Grievance’ filed at the unit level[] and a ‘Step 2 Gri evance’ filed at the regional level if an inmate is not satisfied with the Step 1 Response.” The inmates admitted that Thoele (the only inmate who filed

a related Step 1 grievance ) did not submit a Step 2 grievance until May 20 , 2020

— several weeks after t h e inmates filed their complaint in district court. The y contende d , however, that they were not obligated to complete the grievance process because COVID

- 19 placed them in imminent danger and the TDC J ’s administrative procedures would not provide timely r elief.
TDC J moved to dismiss the inmates’ complaint, asserting , among other things , that Thoele’s claims were unexhausted and thus barred under the PLRA. TDC J attached as exhibits the inmates’ authenticated grievance records, including Thoele’s Step 1 gri evance and TDCJ’s timely response. Case: 20-50666 Document: 00516231999 Page: 2 Date Filed: 03/09/2022No. 20

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3 The inmates filed an opposition to TDC J ’s motion, in which they again asserted that the PLRA did not require exhaustion because the TDC J ’s administrative remedies were unavailable.
The district court granted TDCJ’s motion

. The court held that TDCJ ’s grievance process was “available” for complaints about COVID

- 19

. And, in light of the inmates’ admission that Thoele had failed to exhaust th at process, the court dismissed the inmates’ claims

. II
We review a district c ourt’s determination that a plaintiff failed to exhaust his administrative remedies de novo. Ruiz v. Brennan , 851 F.3d 464, 468 (5th Cir. 2017). Although the PLRA requires exhaustion , “inmates are not required to specially plead or demonstrate exhaustion in their complaints.” Jones v. Bock , 549 U.S. 199, 216 (2007). Exhaustion is an affirmative defense, which “must be asserted by the defendant.” Carbe v. Lappin , 492 F.3d 325, 328 (5th Cir. 2007)

. A failure to exhaust can be grounds for dismissal as a m atter of law

. Jones , 549 U.S. at 215

– 16

. But , a s with other affirmative defenses, dismissal is only appropriate at the Rule 12(b)(6) stage if the inmate’s failure to exhaust appears on the face of the pleadings. See id .; Basic Cap. Mgmt. v. Dynex Cap., Inc ., 976 F.3d 585, 588 (5th Cir. 2020). If instead an exhaustion defense turns on “matters outside the pleadings”

— and Thoele argues his Memorand um was an outside matter

— a motion to dismiss “must be treated as one for summary judgment under Rule 56. ” See **Fed R. Civ. P. 12(** d **)**

. “We have held that a n appellate court can assume that a district court implicitly converted a dismissal to a summary judgment when it considered material outside of the complaint .” Muhammad v. Wiles , 841 F. App ’ x 681, 684 (5t h Cir. 2021). Case: 20-50666 Document: 00516231999 Page: 3 Date Filed: 03/09/2022No. 20

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4 We thus will view the exhaustion ruling through the summary judgment standard. Trinity Marine Prods., Inc. v. United States , 812 F.3d 481, 487 (5th Cir. 2016)

. As an initial matter, Thoele contends that TDCJ’s motion was premature because he was not properly notified and, therefore, did not have an opportunity to respond to TDCJ’s exhaustion argument. We disagree. Tho e le understood from the beginning that the state would assert failure to exhaust. Tho e le admits that the complaint’s failure to mention exhaustion or TDCJ’s grievance process “was intentional.” T he inmates then filed their “Memorandum On PLRA Exhaustion,” detailing Thoele’s c urrent

s tatus in the grievance process and contending that TDCJ’s administrative remedies were not “available” under the relevant caselaw. A month after that, the inmates filed a response to TDCJ’s motion to dismiss, citing the same evidence and reiterating the same “availability” arguments made in the Memorandum.
Even if there were a notice problem, remand would be warranted only if Thoele points us to evidence that would create a genuine dispute of material fact. Atkins v. Salazar , 677 F.3d 66 7 , 67 8 (5th Cir. 2011) . But there is no dispute

— indeed it is admitted

— that Thoele did not exhaust before suing. That undisputed failure to exhaust resolves this case. Prisoners must exhaust “such administrative remedies as are available” before challenging prison conditions under section 1983 “or any other Federal law.” 42 U.S .C. § 1997e(a). The exhaustion requirement applies “irrespective of the forms of relief sought and offered through administrative avenues.” Booth v. Churner , 532 U.S. 731, 741 n.6 (2001). The “one significant qualifier” to the PLRA’s exhaustion mandate is that administrative “remedies must indeed be ‘available’ to the prisoner. ” Ross v. Blake , 578 U.S. 632, 639 (2016)

. To prove this affirmative defense, TDCJ must show that (1) administrative remedies were available and (2) Thoele failed to exhaust Case: 20-50666 Document: 00516231999 Page: 4 Date Filed: 03/09/2022No. 20

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5 them. Cantwell v. Sterling , 788 F.3d 507, 508

– 09 (5th Cir. 2015) (per curiam)

. Tho e le admitted that he did not exhaust, so the only dispute is about the first requirement.
There are “ circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief.” Ross , 578 U.S. at 6 4 3. One situation is when the grievance process “ operates as a simple dead end

— with officers unable or consistently unwilling to provide any relief .” Id. Thoele invokes that exception, arguing that TDCJ’s administrative procedure is too slow and inadequate to ensure the health and welfare of inmates in the context of the COVID

- 19 pandemic.
Valentine v. Collier , 978 F.3d 154 (5th Cir. 2020 ) , rejects Thoele’s argument. That case from the early days of the COVID

- 19 pandemic considered TDCJ’s motion to stay an injunction directing its response to the virus

. In granting the stay, w e held that the claims asserted in the prisoners’ complaint were unexhausted

. Id. at 158. In reaching that holding, we determined that the PLRA required exhaustion because TDCJ’s grievance procedures were available. Id. at 161. Although TDCJ conceded that its grievance process was inadequate in light of COVID

- 19, we explained that inadequacy is not synonymous with unavailability. Id. Under the PLRA, courts are precluded from deciding whether requiring full “ exhaustion would be unjust or inappropriate in a given case.” Id. at 162 (quoting Ross , 578 U.S. at 641). Because TDCJ’s conduct showed “that it was capable of providing ‘some relief’” through the grievance process, that process was still available to the prisoners and thus mandatory under the PLRA. Id. (quoting Ross , 578 U.S. at 642). It did not matter that “TDCJ’s grievance process was lengthy and unlikely to provide necessary COVID

- 19 relief.” Id. Valentine stated that “e mergencies are not ‘license to carve out new ex ceptions to the PLRA’s exhaustion requ irement, an area where our authority is constrained. ’ ” Id. at 161 (quoting Dillon v. Rogers , 596 F.3d 260, 270 (5th Cir. 2010) ). Case: 20-50666 Document: 00516231999 Page: 5 Date Filed: 03/09/2022No. 20

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6 Thoele recognizes Valentine as the “sister case” to this dispute. He complains, however , that the inmates in Valentine were afforded extensive discovery and an eighteen

- day trial, while his claims were dismissed without similar due process

. But discovery could not help Thoele overcome TDCJ’s exhaustion defense . So long as the TDCJ’s administrative procedure grants “authority to take some action in response to a complaint,” that procedure is considered available, even if it cannot provide th e particular “remedial action an inmate demands.” See Booth , 532 U.S. at 7 36 , 741 (emphasis added). Considering all the evidence in the light most favorable to Thoele, TDCJ’s written response to Thoele’s Step 1 grievance shows that TDCJ’s grievance proce ss could provide at least some relief to Thoele. 1 T hat process may have been “suboptimal

. ” See Valentine , 978 F.3d at 16 2 . “But it was available” as a matter of law and thus, Thoele was “required to exhaust it before bringing this suit.” Id.

*** The judgment is **AFFIRMED.**

1 For example, TDCJ ’s response indicates that it addressed inmates’ pandemic
concern s by, among other things , (1) issuing face masks to all inmates, (2) providing them with bleach on a bi

- weekly basis, (3) making extra soap available upon request, and (4) engaging a “special cleaning crew” to sterilize common areas. Case: 20-50666 Document: 00516231999 Page: 6 Date Filed: 03/09/2022