IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-10061

Summary Calendar

ANTHONY DESHAWN THOMAS,

Plaintiff-Appellant

v.

DOCTOR JOHN MILLS, Medical Director; D. PEYTON; TARRANT COUNTY 

HOSPITAL DISTRICT,

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:14-CV-9

Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

Anthony Deshawn Thomas, Texas prisoner # 1864213, proceeding pro se 

and in forma pauperis, appeals the district court’s judgment on remand 

granting the defendants’ motion for summary judgment and dismissing his 

42 U.S.C. § 1983 complaint for failure to exhaust administrative remedies. 

Thomas has filed a motion for the appointment of counsel, a motion to amend 

 

* Pursuant to 5TH CIR. R. 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 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 28, 2017

Lyle W. Cayce

Clerk

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No. 16-10061

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the caption to reflect that he brought suit against the defendants in their 

official and individual capacities, and a motion requesting that this court take 

judicial notice of certain evidence.

Under the Prison Litigation Reform Act (PLRA), “[n]o action shall be 

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

any other Federal law, by a prisoner confined in any jail, prison, or other 

correctional facility until such administrative remedies as are available are 

exhausted.” 42 U.S.C. § 1997e(a). The PLRA’s exhaustion requirement is 

mandatory, Jones v. Bock, 549 U.S. 199, 211 (2007), and this court takes a 

strict approach to the exhaustion requirement, Cowart v. Erwin, 837 F.3d 444, 

451 (5th Cir. 2016).

The crux of Thomas’s argument on appeal is there exists a genuine issue 

of material fact regarding whether his alleged failure to exhaust his

administrative remedies was the fault of the defendants and others at the 

Tarrant County Jail. His argument is refuted by competent summary 

judgment evidence showing that he failed to properly exhaust his available 

remedies, see Cowart, 837 F.3d at 451, and is insufficient to show that 

summary judgment was improper, see Jones v. Lowndes County, Miss., 

678 F.3d 344, 348 (5th Cir. 2012). Even if the responses he received to his 

grievances created some confusion about the appropriate grievance procedure, 

Thomas was repeatedly advised, in writing, that he had 30 days to appeal to 

the Inmate Grievance Appeal Board and that the grievance appeals procedure 

was set forth in the inmate handbook, which the evidence shows he received 

and which was readily available in the confinement areas. Further, although 

Thomas has provided a handwritten letter entitled “Appeal Grievance / 

Letter,” this document is presented for the first time on appeal. Although we 

review de novo the district court’s decision to grant summary judgment, we

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will not consider this evidence as it was “not presented to the district court for 

its consideration in ruling on the motion.” Grogan v. Kumar, ___F.3d___, No. 

15-60678, 2017 WL 4324977, at *3 (5th Cir. Sept. 29, 2017) (internal quotation 

marks and citations omitted). 

Accordingly, the district court’s judgment is AFFIRMED. Because the 

issue of exhaustion is not complex and Thomas has demonstrated that he is 

capable of adequately presenting his case, Thomas’s motion for the 

appointment of counsel is DENIED. All other motions are also DENIED.

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