United States Court of Appeals

for the Fifth Circuit

No. 20-40254

Anthony Prescott, 

Plaintiff—Appellant,

versus

Plybol, Corporal, Denton County Sheriff Department; Gauge, 

Corporal, Denton County Sheriff Department; Von, Deputy, Denton 

County Sheriff Department; Killshaw, Deputy Sheriff, Denton County 

Sheriff Department; Richie, Deputy, Denton County Sheriff Department; 

Chris Watts, Mayor, City of Denton; Denton County State 

Municipal Corporation; Hugh Coleman, Denton County 

Commissioner; Bobbie Mitchell, Denton County Commissioner; Andy 

Eads, Denton County Commissioner; Sara Bagheri, Councilwoman, 

City of Denton, TX; Kelly Briggs, Councilwoman, City of Denton, TX; 

Dalton Gregory, Councilman, City of Denton, TX; Gerard 

Hudspeth, Councilman, City of Denton, TX; Kathleen Wauzy, 

Councilwoman, City of Denton, TX; Todd Hileman, City Manager, 

Denton, TX; Mary Cochran, Chief Administrator, Denton Sheriff 

Department; Mike Ganzer, Jail Administrator, Denton County Sheriff 

Department; William Travis, Previous Sheriff, Denton County; Tracy 

Murphee, Sheriff, Denton County; Orlando Hinojosa, Lieutenant 

of Communications, Denton County Sheriff Department; Rich, Captain, 

Sheriff Department Chain of Command Member; Flannagan, Captain, 

Sheriff Department Chain of Command Member; Hargrove, Sergeant, 

Denton County Sheriff Department; Cordell, Sergeant, Mail Department 

Sup. Officer of Sheriff Department; Farvie, Deputy, Denton County Sheriff 

Department; Kelly Whitmoor, Sheriff Department Officer; Tut, 

Captain of Department, Chain of Command Member; Lieutenant John 

Doe, Sergeant Hargrove's unknown immediate supervisor; Williams, 

United States Court of Appeals

Fifth Circuit

FILED

August 11, 2021

Lyle W. Cayce

Clerk

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Sergeant, Denton County Sheriff Department; John Doe, Unknown Sheriff 

Department officer; John Doe, Sheriff Department maintenance worker; 

John Doe, Sheriff Department Officer; Vybarrar, Sheriff Deputy; 

John Doe, Unknown Sheriff Deputy; John Doe, Unknown Sheriff 

Department medical staff member, 

Defendants—Appellees.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:16-CV-879

Before Jones, Duncan, and Engelhardt, Circuit Judges.

Per Curiam:*

Anthony Prescott, then an inmate incarcerated in the Denton County 

Jail, filed a lawsuit under 42 U.S.C. § 1983, claiming several violations of his 

civil rights. After many of his claims were severed and transferred to other 

judicial districts in Texas, Prescott was left with various § 1983 claims against 

Denton County, the Denton County Sheriff’s Department, and several of 

their officers and employees. The defendants sought dismissal under Federal 

Rule of Civil Procedure 12(b)(6), on the ground that, inter alia, Prescott had 

failed to satisfy the statutory prerequisite under the Prisoner Litigation 

Reform Act of exhausting available administrative remedies prior to filing 

suit. See 42 U.S.C. § 1997e(a). The district court ultimately dismissed 

Prescott’s lawsuit without prejudice for failure to exhaust.

* 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.

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For the reasons that follow, we hold that Prescott’s appeal is not 

frivolous, and his motion to proceed in forma pauperis is therefore 

GRANTED. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). We 

further conclude that further briefing is unnecessary and turn to the merits. 

See Cantwell v. Sterling, 788 F.3d 507, 509 (5th Cir. 2015).

As a preliminary matter, we find that Prescott has abandoned any 

challenge to the district court’s dismissal without prejudice of his claims 

against the seven individual defendants to whom service of Prescott’s 

complaint could not be effected. See Brinkmann v. Dallas Cnty. Sheriff Abner, 

813 F.2d 744, 748 (5th Cir. 1987); Yohey v. Collins, 985 F.2d 222, 224-25 (5th 

Cir. 1983). Accordingly, the district court’s dismissal of those claims is 

AFFIRMED.

Regarding the district court’s dismissal of Prescott’s complaint for 

failure to exhaust, our review is de novo. Carbe v. Lappin, 492 F.3d 325, 327 

(5th Cir. 2007). Exhaustion is an affirmative defense, and the defendants 

have the burden of proving that the plaintiff failed to exhaust available 

administrative remedies. Jones v. Bock, 549 U.S. 199, 216 (2007).

“Exhaustion is defined by the prison’s grievance procedures, and courts 

neither may add to nor subtract from them.” Cantwell, 788 F.3d at 509.

In this case, we cannot discern from the record the grievance 

procedures employed by the Denton County Jail during the span of time that 

Prescott was incarcerated there and the events giving rise to his claims 

occurred. The defendants never introduced the procedures as evidence. 

Furthermore, while the current Denton County Jail Inmate Handbook is 

available online, it discusses the applicable grievance procedures,1 and we can

1 See https://www.dentoncounty.gov/DocumentCenter/View/4683/InmateHandbook-PDF.

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take judicial notice of the handbook, the handbook was revised as of June 

2021, and “the events involved in this case took place years prior.” Cantwell, 

788 F.3d at 509. Thus, there is “no evidence of whether the procedures were 

the same during the relevant time,” and the online version of the handbook 

is “of no help here.” Id. Additionally, the defendants put forth no evidence 

showing that the applicable procedures were explained to Prescott or that he 

was aware of them. See Dillon v. Rogers, 596 F.3d 260, 268 (5th Cir. 2010).

In sum, the defendants submitted no evidence to the district court or 

this court regarding the Denton County Jail’s grievance procedures, and 

“[w]ithout knowing what the applicable grievance procedures say, it’s 

impossible to determine whether [Prescott] exhausted them.” Cantwell, 

788 F.3d at 509. Accordingly, we hold that the district court erred in 

dismissing Prescott’s complaint for failure to exhaust, its judgment is 

REVERSED in part and AFFIRMED in part, and the case is 

REMANDED for further proceedings. See id.

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