# United States Court of Appeals **for the Fifth Circuit**

____________ No. 22-40597 Summary Calendar

____________ Raul Gonzalez, Plaintiff—Appellant ,

versus Sergeant Josie Resendez, Defendant—Appellee

.

______________________________ Appeal from the United States District Court for the Southern District of Texas USDC No. 2:18-CV-220

______________________________ Before Jones, Smith, and Ho, Circuit Judges

. Per Curiam: * Raul Gonzalez, Texas prisoner # 2104383, sued Sergeant Josie Resendez, an employee of the Texas Department of Criminal Justice (TDCJ), under 42 U.S.C. § 1983, alleging that Resendez ordered the use of excessive force against him in violation of the Eighth Amendment. The

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* Pursuant to 5th Circuit Rule 47.5, th e court has determined that this opinion should not be published and is not preceden t except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED August 18, 2023

Lyle W. Cayce Clerk Case: 22-40597 Document: 00516863679 Page: 1 Date Filed: 08/18/2023No. 22-40597

2 district court entered summary ju dgment for Resendez, finding that Gonzalez had failed to exhaust his av ailable administrative remedies by raising his excessive force claim only at the second step of the TDCJ’s twostep grievance process. Gonzalez contends that he exhausted his excessive force claim despite raising it only in his “step two” grievance because (1) TDCJ rules do not require claims to first be raised in a “step one” grievance and (2) the TDCJ denied his “step two” grievance on the merits. Gonzalez further analogizes to Fede ral Rule of Civil Procedure 15(c), averring that his “step two” grieva nce effectively related back to his defective “step one” grievance. We review a summary judgment de novo , using the same standard as that employed by the district court. McFaul v. Valenzuela , 684 F.3d 564, 571 (5th Cir. 2012). Summary judgment is proper “if the movant shows that there is no genuine dispute as to any ma terial fact and the movant is entitled to judgment as a matter of law.” F ED

. R. C IV

. P. 56(a). Gonzalez’s arguments ar e unavailing. TDCJ inmates “must pursue a grievance through both steps for it to be considered exhausted.” Johnson v. Johnson , 385 F.3d 503, 515 (5th Cir. 2004). The TDCJ’s “step one” grievance form explicitly instructs pr isoners to state the “who, what, when, and where” of their grievance, which Go nzalez failed to do with respect to his excessive force claim. The “step two” form serves expressly as a means to review the resolution of a prisoner’s “step one” grievance; it does not suggest that prisoners may raise new clai ms for the first time. By raising his excessive force claim only at step two, Gonzalez failed to comply with prison grievance procedures. See Jones , 549 U.S. at 218; cf. Butts v. Martin , 877 F.3d 571, 583 (5th Cir. 2017).
Gonzalez is also incorrect that hi s excessive force claim was exhausted because the TDCJ denied his “step tw o” grievance on the merits. The Case: 22-40597 Document: 00516863679 Page: 2 Date Filed: 08/18/2023No. 22-40597

3 TDCJ’s response to Gonzalez’s “ste p two” grievance focused exclusively on his properly raised claim of impr oper medical care. The TDCJ did not resolve Gonzalez’s complaint of excessi ve force on substantive grounds. See Gates v. Cook , 376 F.3d 323, 331 n.6 (5th Cir. 2004). Lastly, in light of the TDCJ’s grievance rules, Gonzalez’s re liance on Rule 15(c) is misplaced. Gonzalez fails to show a genuine and material dispute as to whether he exhausted his available administrative remedies for purposes of § 1983. See Dillon v. Rogers , 596 F.3d 260, 272 (5th Cir. 2010). The district court thus correctly entered ju dgment for Resendez as a matter of law. The judgment is AFFIRMED

. Case: 22-40597 Document: 00516863679 Page: 3 Date Filed: 08/18/2023