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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JAMES EDWARD DANIELS, §

§ 

Plaintiff, §

§

v. § Civil Action No. 3:05-CV-1739-M

§ ECF

DALLAS COUNTY, et al., §

§

Defendants. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

Pursuant to the District Court’s Standing Order of Reference (doc. 67), this case has been

referred to this Court for pretrial management. Before this Court is Defendant Dallas County’s

Motion for Summary Judgment (converted from a Motion to Dismiss) (docs. 87, 100). Plaintiff

responded to this Motion on July 11, 2007 (doc. 105), and Defendant filed its reply on August 6,

2007. For the reasons stated below, this Court recommends that the Motion for Summary Judgment

(converted from a Motion to Dismiss) be GRANTED.

BACKGROUND

On August 24, 2005, Plaintiff, proceeding pro se, filed this action pursuant to 42 U.S.C.A.

§ 1983, claiming that while incarcerated from June 5, 2003 until September 1, 2004 Defendant

Dallas County failed to provide Plaintiff medical care. (Pl.’s Compl. 1.) Plaintiff also claims that

he is currently incarcerated and is still not receiving adequate care. (Pl.’s Compl. 3.) Dallas County

seeks summary judgment based on its affirmative defense that Plaintiff failed to exhaust available

administrative remedies as mandated by § 1997e(a) of Title 42 of the United States Code. (Def.

Mot. Dismiss Br. Supp. 2). In support of its motion for summary judgment, Dallas County filed an
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appendix on May 1, 2007, which includes all grievances filed by Plaintiff during his time in the

Dallas County Jail. (Def.’s App. Supp. Mot. Dismiss Ex. 1–3.) Dallas County argues that none of

the grievances address the subject matter of the complaint. (Def.’s App. Supp. Mot. Dismiss

Sweet Aff. 1–3.) 

In response, Plaintiff alleges that he filed grievances in addition to those included in Dallas

County’s Appendix, specifically one in June 2003. (Pl.’s Objection Mot. Summ. J. Daniel Aff. 1.)

Moreover, Plaintiff claims that one of grievances in the Defendant’s Appendix did in fact contain

allegations of denial of medical care by the guards, and asserts that Sheriff Valdez failed to respond

to that portion of the grievance. (Pl.’s Objection Mot. Summ. J. Daniel Aff. 1.) As further evidence

of exhaustion, Plaintiff asserts that a § 1983 suit filed in the United States District Court on July 10,

2003 satisfies the complaint requirement. (Pl.’s Objection Mot. Summ. J. Daniel Aff. 1.) Finally,

Plaintiff alleges that he was threatened by jail staff and told not to file anymore grievances. (Pl.’s

Objection Mot. Summ. J. Daniel Aff. 1.) 

STANDARD OF REVIEW

A court should not grant a motion to dismiss unless “it appears beyond a doubt that the

plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley

v. Gibson, 355 U.S. 41, 45–46 (1957). If the moving party presents matters outside the pleadings,

which are not excluded by the Court, the motion should be treated as one for summary judgment.

Fed. R. Civ. Pro. 12(b). Once the motion to dismiss is converted to a motion for summary judgment

all parties should be afforded a “reasonable opportunity to present all material made pertinent to

such a motion.” Fed. R. Civ. Pro. 12(b). 

On April 24, 2007 Dallas County filed a Response to Plaintiff’s Motion for Extension of
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Time to Respond. (Def.’s Resp. Pl.’s Mot. Extend. Time Respond.) Included in its response, Dallas

County requested a conversion of its’ motion to dismiss to a motion for summary judgment. (Def.’s

Resp. Pl.’s Mot. Extend. Time Respond 1–2.) On May 1, 2007, Dallas County filed an appendix,

containing evidence supporting its motion for summary judgment. (Def.’s App. Supp. Mot. Summ.

J.) Plaintiff was given the opportunity to respond to the motion, and filed his response on July 11,

2007. (Pl.’s Objection Mot. Summ. J.) As a result of Dallas County’s reliance on matters outside

the pleadings, and because Plaintiff had the opportunity to respond, Dallas County’s motion to

dismiss is converted to a motion for summary judgment.

The court should grant a motion for summary judgment if there is “no genuine issue as to

any material fact” and “the moving party is entitled to judgment as a matter of law.” Celotex Corp.

v. Catrett, 477 U.S. 317, 323. If the nonmovant bears the burden of proof at trial, the summary

judgment movant may satisfy his burden by pointing to the absence of evidence supporting the

nonmovant’s case. Id. At this point, the nonmovant must show that summary judgment is not

appropriate by going beyond the pleadings to demonstrate “specific facts showing that there is a

genuine issue for trial.” Id. Mere conclusory allegations or denials unsupported by specific facts

are not enough. Id. 

ANALYSIS

Dallas County contends that its’ motion for summary judgment should be granted because

Plaintiff failed to exhaust administrative remedies as required by 42 U.S.C. § 1997(e)(a). Section

1997e(a) was amended by the Prison Litigation Reform Act of 1996 (“PLRA”). Wendell v. Asher,

162 F.3d 887, 890 (5th Cir. 1998). PLRA provides that “[n]o action shall be brought with respect

to prison conditions under § 1983 of this title, or any other federal law, by a prisoner confined in any
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jail, prison, or other correctional facility until such administrative remedies as are available are

exhausted.” PLRA, Pub. L. No. 104–34, § 803, 110 Stat. 1321 (1996). The exhaustion requirement

of § 1997e “applies to all inmate suits about prison life, whether they involve general circumstances

or particular episodes, and whether they allege excessive force or some other wrong.” Porter v.

Nussle, 534 U.S. 516, 532 (2002). Previously, the exhaustion requirement was limited and within

the discretion of the district court. Porter v. Nussle, 534 U.S. 516, 524 (2002). Under the PLRA,

however, exhaustion is mandatory and strictly construed. Days v. Johnson, 322 F.3d 863, 866 (5th

Cir. 2003); see also Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) (“[W]e will not read futility or

other exceptions into statutory exhaustion requirements where Congress has provided otherwise.”).

The Supreme Court, in Jones v. Bock, noted that the prison grievance process defines the applicable

procedural rules that prisoners must first exhaust. 127 S. Ct. 910, 913 (2007); see also Alexander

v. Tippah County, 351 F.3d 626, 630 (5th Cir. 2003) (“[Prisoners] must exhaust such administrative

remedies as are available, whatever they may be.”). The Court does not inquire into whether the

administrative procedures are fair or effective. Alexander, 351 F.3d at 630.

The Dallas County Jail provides a two-step grievance procedure for inmates. Wendell, 162

F.3d at 891. Step one requires the inmate to submit the grievance, which is investigated by a unit

grievance investigator. Id. (citing Texas Department of Criminal Justice, Administrative Directive

No. AD-03.82 (rev. 1), Policy ¶ IV (Jan. 31, 1997). The investigator then submits a

recommendation to the final decision maker, which may be the warden, assistant warden, facility

administration, or health administrator. Id. The inmate, in step two, has an opportunity to appeal

the decision to the division grievance investigation. Id. After investigation, a recommendation is

made to the final decision maker, who at this point is either the director, deputy director, regional
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or assistant director. Id. An inmate is required to pursue his grievance at both steps in order to

exhaust his administrative remedies. Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998). See also

Medrano v. Dallas County Jail Medical Staff, No. 3:04-CV-1913-M, 2005 WL 106573, at *2 (N.D.

Tex. April 14, 2005), rec. adopted, 2005 WL 877925 (N.D. Tex. Apr. 14, 2005), citing Burnett v.

Robertson, No. 3:01-CV-1284-P, 2001 WL 1577495, at *2 (N.D. Tex. Dec. 7, 2001). 

Plaintiff counters Defendant’s allegation of failing to exhaust administrative remedies by

claiming that he has in fact filed grievances relating to his medical care. (Pl.’s Objection Mot.

Summ. J. Daniels Aff. 1.) When the non moving party bears the burden of proof at trial, the moving

party can point to the absence of evidence supporting the non moving party’s case. Celotex Corp.

v. Catrett, 477 U.S. 317, 325 (1986). Once this occurs, the non moving party must show summary

judgment is not appropriate by designating “specific facts showing that there is a genuine issue for

trial.” Id. at 324. In this case, Dallas County has done more than simply point to the absence of

evidence; it has provided copies of all grievances Plaintiff filed while incarcerated. (Def.’s App.

Supp. Mot. Dismiss Ex. 1–3.) Despite his attempts, Plaintiff fails to designate specific facts

showing a genuine issue for trial. In Plaintiff’s response, he first contends that he filed a grievance

in June 2003. (Pl.’s Objection Mot. Summ. J. 3.) Then, in his Unsworn Declaration attached to the

response, Plaintiff alleges that he filed grievances regarding poor medical treatment from June 2003

to June 2006. (Pl.’s Objection Mot. Summ. J. Daniels Aff. 1.) There are no facts beyond these

conclusory statements that demonstrate Plaintiff filed grievances relating to improper medical care.

Therefore, Plaintiff fails to show a genuine issue for trial by merely stating he filed grievances. 

In addition to Plaintiff’s claim that he filed grievances, he also claims that Dallas County Jail

officials failed to respond to the grievances he did file. As support for this assertion, Plaintiff directs
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the Court’s attention to Defendant’s Exhibit #1, grievance #54275. (Pl.’s Objection Mot. Summ.

J. 3.) Since Plaintiff does not provide specific facts detailing any other instances in which the

Plaintiff’s grievances were ignored, this is the only grievance the Court will consider. In grievance

#54275, Plaintiff complains of the opening of his legal mail, the confiscation of “keep on the person”

medicine, and the removal of a second mattress. (Def.’s App. Supp. Mot. Dismiss Ex. 1.) A

response to this grievance was sent to Plaintiff detailing the policy of opening mail, but did not

mention the confiscation of “keep on the person” medicine, or the removal of a second mattress.

(Def. App. Supp. Mot. Dismiss Ex. 1.) Plaintiff’s claim, however, focuses on not being allowed

to see a doctor while incarcerated in Dallas County Jail, and not on an instance of confiscating “keep

on the person” medicine or the removal of a second mattress. (See Pl.’s Compl. 2–4.) Without a

correlation between the topic of the grievance and the claim, the lack of a response does not

overcome the exhaustion requirement. 

Moreover, even if the confiscation of “keep on the person” medicine and the removal of a

second mattress did adequately address the Plaintiff’s claim, Plaintiff still did not exhaust his

administrative remedies. The Texas grievance process has two steps, and both steps must be

exhausted. See Wright v. Hollingsworth, 260 F. 3d 357, 358 (5th Cir. 2001) (rejecting plaintiff’s

claim that filing a Step One grievance sufficiently satisfies the exhaustion requirements). The Dallas

County Sheriff’s Department responded to grievance #54275 on October 14, 2005. (Def. App.

Supp. Mot. Dismiss Ex. 1.) Plaintiff contends that this response did not adequately address all issues

contained in his grievance. (Pl.’s Objection Mot. Summ. J. 3.) However, Plaintiff did not appeal

this decision. Consequently, Plaintiff failed to exhaust his administrative remedies because he did

not complete the second step of the process. 
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Plaintiff also argues that he satisfied the exhaustion requirement because his previous § 1983

claim, filed July 10, 2003 constitutes a complaint. (Pl.’s Objection Mot. Summ. J. Daniels Aff. 1.)

This reasoning, however, runs contrary to “Congress’ purpose in passing the PLRA, which was to

provide the federal courts some relief from frivolous prisoner litigation.” Wendell, 162 F.3d at 891.

PLRA requires that “administrative remedies be exhausted before the filing of suit.” Id. at 890–91.

The previous filing of a lawsuit, therefore, does not satisfy the exhaustion requirement.

Finally, Plaintiff alleges that “he was told by jail supervisors that if he filed anymore

grievances he would not be able to stand the heat,” and that the “jail staff retaliated against him on

several occasions.” (Pl.’s Objection Mot. Summ. J. Daniels Aff. 1.) These statements fail to

sufficiently set forth facts constituting a genuine issue. There is no indication as to when these

alleged threats were made or who made the threats. Moreover, despite Plaintiff’s allegations of

threats and retaliation from the jail staff, Plaintiff does not contend that administrative remedies were

unavailable to him. In certain circumstances, the Court does recognize that administrative remedies

are unavailable. See e.g., Days v. Johnson, 322 F.3d 863 (5th Cir. 2003). Plaintiff, however, never

argues that these statements prevented him from filing grievances. On the contrary, he argues that

he in fact filed grievances. Therefore, Plaintiff is not excused from exhausting administrative

remedies under the Texas grievance procedure. 

CONCLUSION

Due to the conclusory nature of Plaintiff’s allegations and his failure to exhaust available

administrative remedies, this Court recommends the Motion for Summary Judgment filed by

Defendant Dallas County be GRANTED, and Plaintiff’s claims against Defendant Dallas County
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be dismissed with prejudice for failure to comply with the terms of 42 U.S.C. § 1997e(a). 

SO RECOMMENDED. August 28, 2007.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE
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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a true copy of these findings, conclusions, and

recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any

party who desires to object to these findings, conclusions, and recommendation must serve and file

written objections within ten days after being served with a copy. A party filing objections must

specifically identify those findings, conclusions, or recommendation to which objections are being

made. The District Court need not consider frivolous, conclusory or general objections. A party's

failure to file such written objections to these proposed findings, conclusions, and recommendation

shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S.

140, 150 (1985). Additionally, any failure to file written objections to the proposed findings,

conclusions, and recommendation within ten days after being served with a copy shall bar the

aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge

that are accepted by the District Court, except upon grounds of plain error. See Douglass v. United

Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).