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 

_____________________ 

*

 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should not be published and is not precedent except under the limited circumstances set 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 18, 2023 

Lyle W. Cayce 

Clerk 

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No. 22-40597 

2 

district court entered summary judgment for Resendez, finding that 

Gonzalez had failed to exhaust his available 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 Federal Rule of Civil Procedure 15(c), 

averring that his “step two” grievance 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 material fact and the movant is entitled 

to judgment as a matter of law.” FED. R. CIV. P. 56(a). 

Gonzalez’s arguments are 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 prisoners to state the “who, what, when, 

and where” of their grievance, which Gonzalez 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 claims 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 his excessive force claim was exhausted 

because the TDCJ denied his “step two” grievance on the merits. The 

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TDCJ’s response to Gonzalez’s “step two” grievance focused exclusively 

on his properly raised claim of improper medical care. The TDCJ did not 

resolve Gonzalez’s complaint of excessive 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 reliance 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 judgment for Resendez as a matter of law. The 

judgment is AFFIRMED. 

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