# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 20

- 40254

**Anthony Prescott,**

Plaintiff

— Appellant **,**

v ersus

**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 Comm issioner **; 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 **; Tr acy**  **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,** Serg eant, 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 Case: 20-40254 Document: 00515974171 Page: 1 Date Filed: 08/11/2021No. 20

- 40254

2 Sergeant **,** Denton County Sheriff Department **; John Doe** , Unknown Sheriff Department officer **; John Doe,** Sheriff Department maintenance worker **; John Doe,**  Sheriff Department Offi cer **; 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 unde r the Prisoner Litigation Reform Act of exhausting available administrative remedies prior to filing
suit. See 42 U.S.C. § 1 9 97e(a). The district court ultimately dismissed
Prescott’s lawsuit without prejudice for failure to exhaust.

* Pursuant to **5th Cir cuit**  **R ule**  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 cuit**  **R ule**  47.5.4. Case: 20-40254 Document: 00515974171 Page: 2 Date Filed: 08/11/2021No. 20

- 40254

3 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 C nt

y

. 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 procedur es, 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 dis cusses the applicable grievance procedures, 1 and we can

1 See https://www.dentoncounty.gov/DocumentCenter/View/4683/Inmate

Handbook

- PDF

. Case: 20-40254 Document: 00515974171 Page: 3 Date Filed: 08/11/2021No. 20

- 40254

4 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 t hat 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 ap plicable 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
**R EVERSED**  in part and **AFFIRMED** in part **,** and t he case is
**REMANDED** for further proceedings. See id. Case: 20-40254 Document: 00515974171 Page: 4 Date Filed: 08/11/2021