United States Court of Appeals

for the Fifth Circuit

No. 19-50681

Juan Javier Ornelas, 

Plaintiff—Appellant,

versus

Alexander Hamilton, Office of Inspector General, 

Defendant—Appellee.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:18-CV-56

Before Owen, Chief Judge, and Clement and Duncan, Circuit Judges.

Per Curiam:*

Juan Javier Ornelas, Texas prisoner # 01758617, filed a pro se civil 

rights complaint under 42 U.S.C. § 1983 against Alexander Hamilton, an 

investigator for the Texas Department of Criminal Justice’s (“TDCJ”) 

Office of the Inspector General. Ornelas alleged that another inmate 

physically and sexually abused him while confined at the Boyd Unit within 

* 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opinion should not be published and is not precedent except under the limited 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

October 6, 2021

Lyle W. Cayce

Clerk

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the TDCJ. Despite allegedly reporting the abuse to Hamilton, Ornelas claims 

that Hamilton ignored his written complaints. As a result, the physical and 

sexual abuse purportedly continued. Hamilton moved for summary 

judgment, claiming that, among other things, Ornelas failed to exhaust his 

administrative remedies pursuant to the Prison Litigation Reform Act 

(“PLRA”).

The district court granted Hamilton’s motion for summary judgment 

and dismissed Ornelas’ § 1983 claim with prejudice, finding that Ornelas’ 

claims were unexhausted, and, in any event, he had not alleged sufficient 

facts to state a claim for failure to protect. Ornelas timely appealed, asserting 

that the district court erred in: (1) finding that his claims were not exhausted; 

(2) finding that he did not allege sufficient facts to support his failure to 

protect claim; and (3) denying his motions to compel discovery and for the 

appointment of counsel. Ornelas also moved for the appointment of counsel 

on appeal, which we granted. We now affirm.

I.

We review a grant of summary judgment de novo. Nickell v. Beau View 

of Biloxi, L.L.C., 636 F.3d 752, 754 (5th Cir. 2011) (quotation omitted). 

Summary judgment is proper where there is no genuine dispute regarding 

any material fact, and the movant is entitled to judgment as a matter of law. 

Fed. R. Civ. P. 56(a). 

II.

A prisoner who wishes to file a § 1983 lawsuit for damages against 

prison officials must first exhaust all available administrative remedies. 42 

U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 202 (2007); Johnson v. 

Johnson, 385 F.3d 503, 515 (5th Cir. 2004). To properly exhaust a claim, a 

prisoner must not only pursue all available avenues of relief but must also 

comply with all administrative remedies and procedural rules. Woodford v. 

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Ngo, 548 U.S. 81, 89–95 (2006). If a claim is not properly exhausted prior to 

the filing of the § 1983 complaint, it must be dismissed. Gonzalez v. Seal, 702 

F.3d 785, 788 (5th Cir. 2012) (per curiam).

Hamilton concedes that “under current Fifth Circuit case law, any 

administrative-exhaustion argument was waived when prison officials 

considered, and rejected, Ornelas’[] grievance on the merits.” See Appellee 

Supp. Br. at 11–12 (first citing ROA.236-37, 257-58; then citing Gates v. Cook, 

376 F.3d 323, 331 n.6 (5th Cir. 2004); Johnson, 385 F.3d at 520; Cortez v. 

Richardson, 725 F. App’x 315, 315–16 (5th Cir. 2018) (per curiam); Patterson 

v. Stanley, 547 F. App’x 510, 512 (5th Cir. 2013) (per curiam)). 

Notwithstanding Hamilton’s exhaustion concession, Ornelas still cannot 

prevail on appeal because he failed to allege sufficient facts to state a claim 

for failure to protect.

III.

To state of claim of failure to protect, a prisoner must show that “he 

was incarcerated under conditions posing a substantial risk of serious harm 

and that prison officials were deliberately indifferent to his need for 

protection.” Jones v. Greninger, 188 F. 3d 322, 326 (5th Cir. 1999) (per 

curiam) (internal quotation marks and citation omitted). 

As the district court determined, there was no evidence or allegation 

that Hamilton was aware of facts from which he could infer that there was an 

excessive risk to Ornelas’ safety. See Whitley v. Hanna, 726 F.3d 631, 641 

(5th Cir. 2013) (“To act with deliberate indifference, a state actor must know 

of and disregard an excessive risk to the victim’s health or safety.” (cleaned 

up)). Though Ornelas alleges that he sent letters to Hamilton on April 1 and 

April 17, 2016, reporting the abuse, and asking for help, there is no evidence 

or allegation that Hamilton saw them. There is also no evidence or allegation 

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that Hamilton ever saw or received the grievances Ornelas eventually filed in 

2017, after being transferred from the Boyd Unit. 

To the extent that Ornelas argues that Hamilton should have 

perceived the risk to his health and safety given that Hamilton knew that

Ornelas previously acted as an informant in an official prison investigation, 

that is insufficient to support a constitutional claim under the Eighth 

Amendment. “[A]n official’s failure to alleviate a significant risk that he 

should have perceived but did not,” does not constitute deliberate 

indifference. Farmer v. Brennan, 511 U.S. 825, 838 (1994); see id. at 840 

(holding that “Eighth Amendment liability requires consciousness of a 

risk”); cf. Johnson, 385 F.3d at 524 (“The official’s knowledge of the risk can 

be proven through circumstantial evidence, such as by showing that the risk 

was so obvious that the official must have known about it.” (citation 

omitted)).

IV.

Ornelas argues that the district court erred in dismissing his pending 

motion to compel discovery when it granted summary judgment. Ornelas 

does not explain how any discovery would have substantiated his allegations 

regarding his claim of failure to protect. Because Ornelas relies on vague 

assertions regarding the need for additional discovery, he has failed to show 

that the district court abused its discretion in denying his motion to compel. 

See Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1267 (5th Cir. 1991). 

Ornelas further complains that the district court erred in denying his 

motion for the appointment of counsel. Ornelas’ claim of failure to protect 

is not so complex as to require the appointment of counsel. See Ulmer v. 

Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). Moreover, Ornelas’ filings in 

the district court indicate his grasp of the facts and relevant substantive and 

procedural legal issues and demonstrate that he can adequately investigate 

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and present his case. See Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 

2007). The district court did not abuse its discretion in refusing to appoint 

counsel for Ornelas. See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).

AFFIRMED.

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