* Pursuant to 5 TH C IR

. 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that this opinion should not be published and is not precedent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 5 TH C IR

.

R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

February 17, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-40765

Summary Calendar

MICHAEL J. AUSTIN,

Plaintiff-Appellant,

versus

K. WARD, etc., Et Al,

Defendants,

MICHAEL STARKEY, Assistant Warden;

CLIFTON WARNER, Captain; ELAINA G. FIELD,

Substitute Counsel; KEVIN MAYFIELD,

Lieutenant; CHARLES LIGHTFOOT, Major;

JOHNNY L. WRIGHT, Officer; CARROLL D.

RUSSELL, Officer;

Defendants-Appellees.

-------------------- Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:01-CV-349

--------------------

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM: *

Michael J. Austin (“Austin”), Texas prisoner #661366, appeals

the magistrate judge’s grant of summary judgment to the defendants

in his 42 U.S.C. § 1983 civil rights action. Austin contends thatNo. 03-40765

-2-

the magistrate judge erred in finding that his deliberate

indiffe rence and excessive use of force claims against Charles

Lightfoot (“Lightfoot”), Johnny L. Wright (“Wright”), and Carroll

D. Russell (“Russell”) were barred by 42 U.S.C. § 1997e(a) because

he failed to exhaust his administrative remed ies regarding those

claims. Austin asserts that there were disputed factual issues

r egarding his exhaustion of administrative remedies, that his

failure to exhaust should have been excused because he made

substantial efforts t o exhaust but was prevented from exhausting

his administrative remedies by prison officials, and that

Lightfoot, Wright, and Russell waived the exhaustion requirement by

waiting too long to raise the issue.

Austin argues that the magist rate judge erroneously granted

summary judgment to Kevin Mayfield (“Ma yfield”), Michael Starkey

(“Starkey”), and Clifton Warner (“Warner”) on his due process

claims because those defendants violated his due process rights by

forfeiting $1,200 from his prison trust account without legal

authority. Austin additionally maintains that (1) summary judgment

was improper because the defendan ts had not responded to his

pending discovery request, (2) he was entitled to sue the

defendants in their individual capacities, and (3) the defendants

were not entitled to qualified immunity.

We review the magistrate judge’s grant of summary judgment de

novo

. S ee Whittaker v. BellSouth Telecomm., Inc.

, 206 F.3d 532,

534 (5th Cir. 2000). Summary judgment is proper where theNo. 03-40765

-3-

pleadings and summary judgment evidence present no genuine issue of

material fact and the moving party is entitled to a judgment as a

matter of law. S ee F ED

. R. C IV

. P. 56(c); Celotex Corp. v. Catrett

,

477 U.S. 317, 322 (1986). If the moving party meets its initial

burden of showing that there is no genuine issue of material fact,

the burden shifts to the nonmovant to set forth specific facts

s howing the existence of a genuine issue for trial. See F E D

. R.

C IV

. P. 56(e). We review a denial of discovery prior to the grant

of summary judgment for abuse of discretion and will affirm such a

decision unless it is arbitrary or clearly unreasonable. M oore v.

Willis Indep. Sch. Dist. , 233 F.3d 871, 876 (5th Cir. 2000).

Austin’s argu ments are without merit. “No action shall be

brought with respect to pri son conditions under section 1983 of

this title, or any other Federal law, by a prisoner confined in any

jail, prison, or other correctional fac ility until such

administrative remedies as are available are exhausted.” 42 U.S.C.

§ 1997e (2003). Defendants presented summary judgment evidence

showing that Austin had not filed a grievance regarding his claims

against Lightfoot, Wright, and Ru ssel, and the magistrate judge

correctly found that Austin had not alleged or provided evidence

showing that he attempted to file a Step 2 grievance regarding his

claim against them. Because Austin presented no evidence that he

filed or attempted to file a Step 2 Grievance regarding his claims

against Lightfoot, Wright, and Russell, he did not establish a

genuine issue of material fact regarding exhaustion or show that heNo. 03-40765

-4-

made a substantial effort to exhaust his administrative remedies.

See Wendell v. Asher

, 162 F.3d 887, 891 (5th Cir. 1998). Assuming,

arguendo

, that the exhaustion requirement is an affirmative defense

that may be waived, such a waiver would not be applicable in this

case because the issue was raised at a pragmatically sufficient

time and Austin was not prejudiced by the defendants’ failure to

raise the issue earlier. S ee Lafreniere Park Found. v. Broussard

,

221 F.3d 804, 808 (5th Cir. 2000).

The forfeiture of $1,200 from Austin’s prison trust account

did not violate due process even if it was unauthorized because

Austin had a meaningful postdeprivation remedy for the forfeiture,

such as a state-law tort action for conversion. S ee Hudson v.

Palmer

, 468 U.S. 517, 533 (1984); Cathey v. Guenther

, 47 F.3d 162,

164 (5th Cir. 1995). Considering that Austin does not argue on

appeal that the procedures followed during his disciplinary

proceedings violated his due process rights, he has waived any such

argument. S ee Y ohey v. Collins , 985 F.2d 222, 224-25 (5th Cir.

1993).

As Austin did not explain how the responses to his pending

discovery request would have created a ge nuine issue of material

fact, the magistrate judge did not abuse her discretion by granting

summary judgment prior to the defen dants responding to the

discovery request. See Washington v. Allstate Ins. Co. , 901 F.2d

1281, 1285 (5th Cir. 1990). We need not reach Austin’s remaining

points of error.No. 03-40765

-5-

AFFIRMED.