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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

DONNIE R CHASEBERRY,

Plaintiff,

v. 

FNU DR. WHITE,

Defendant.

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CIVIL ACTION NO. 6:23-CV-00110-JCB

REPORT AND RECOMMENDATION OF

UNITED STATES MAGISTRATE JUDGE

Plaintiff Donnie Chaseberry, an inmate confined at the Gregg County Jail, proceeding pro 

se and in forma pauperis, filed this civil rights lawsuit pursuant to 42 U.S.C. § 1983 alleging 

purported violations of his constitutional rights. (Doc. No. 1.) The complaint was referred to the 

undersigned for findings of fact, conclusions of law, and recommendations for the disposition of 

the case. (Doc. No. 2.) On June 6, 2023, Defendant FNU Dr. White filed a motion for summary 

judgment for failure to exhaust administrative remedies. (Doc. No. 16.) Plaintiff has not filed a 

response and the time for doing so has passed. See Doc. No. 7. For the reasons set forth below, the 

court RECOMMENDS that Defendant’s motion for summary judgment (Doc. No. 16) be 

GRANTED and that this action be DISMISSED without prejudice. 

BACKGROUND

Plaintiff initiated this lawsuit on March 2, 2023 against Defendant FNU Dr. White. (Doc. 

No. 1.) In his complaint, Plaintiff states that on April 28, 2022, he was booked at the Gregg County 

Jail and thereafter talked with Dr. White about getting medication as he is HIV positive. Id. at 4. 

Plaintiff alleges that Dr. White told him that he would not receive medical attention or medication 

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for his condition because his medication costs too much and Gregg County cannot afford it. Id.

Plaintiff alleges that he has been at Gregg County Jail for ten months without proper medical 

attention. Id.

LEGAL STANDARD

A motion for summary judgment should be granted if the record, taken as a whole, 

“together with the affidavits, if any, show that there is no genuine issue as to any material fact and 

that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56; Celotex Corp. 

v. Catrett, 477 U.S. 317, 323–25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 

(5th Cir. 1998). The Supreme Court has interpreted the plain language of Rule 56 as mandating 

“the entry of summary judgment, after adequate time for discovery and upon motion, against a 

party who fails to make a showing sufficient to establish the existence of an element essential to 

that party’s case, on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. 

at 322. 

The party moving for summary judgment “must ‘demonstrate the absence of a genuine 

issue of material fact,’ but need not negate the elements of the nonmovant’s case.” Little v. Liquid 

Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (quoting Celotex, 477 U.S. at 323–25). A 

fact is material if it might affect the outcome of the suit under the governing law. Merritt-Campbell, 

Inc. v. RxP Prods., Inc., 164 F.3d 957, 961 (5th Cir. 1999). Issues of material fact are “genuine” 

only if they require resolution by a trier of fact and if the evidence is such that a reasonable jury 

could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 248 (1986); Merritt-Campbell, Inc., 164 F.3d at 961. If the moving party “fails to meet this 

initial burden, the motion must be denied, regardless of the nonmovant’s response.” Little, 37 F.3d 

at 1075.

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If the movant meets this burden, Rule 56 requires the opposing party to go beyond the 

pleadings and to show by affidavits, depositions, answers to interrogatories, admissions on file, or 

other admissible evidence that specific facts exist over which there is a genuine issue for trial. 

EEOC v. Texas Instruments, Inc., 100 F.3d 1173, 1180 (5th Cir. 1996); Wallace v. Texas Tech. 

Univ., 80 F.3d 1042, 1046–47 (5th Cir. 1996). The nonmovant’s burden may not be satisfied by 

argument, conclusory allegations, unsubstantiated assertions, metaphysical doubt as to the facts, 

or a mere scintilla of evidence. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 585 

(1986); Wallace, 80 F.3d at 1047; Little, 37 F.3d at 1075.

When ruling on a motion for summary judgment, the court is required to view all justifiable 

inferences drawn from the factual record in the light most favorable to the nonmoving party. 

Matsushita, 475 U.S. at 587; Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970); MerrittCampbell, Inc., 164 F.3d at 961. However, the court will not, “in the absence of any proof, assume 

that the nonmoving party could or would prove the necessary facts.” McCallum Highlands, Ltd. v. 

Washington Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir. 1995), as modified, 70 F.3d 26 (5th Cir. 

1995). Unless there is sufficient evidence for a reasonable jury to return a verdict in the opposing 

party’s favor, there is no genuine issue for trial, and summary judgment must be granted. Celotex, 

477 U.S. at 322–23; Anderson, 477 U.S. at 249–51; Texas Instruments, 100 F.3d at 1179. 

DISCUSSION

Defendant argues that Plaintiff failed to properly exhaust administrative remedies 

regarding his claims prior to filing the instant suit. (Doc. No. 16, at 8.) Plaintiff has not submitted 

any response in opposition and the time for doing so has passed. See Doc. No. 7. Accordingly, the 

court presumes Plaintiff does not controvert the facts set out by Defendant and has no evidence to 

offer in opposition to Defendant’s motion. Local R. CV-7(d); see also Fed. R. Civ. P. 56(e)(2) 

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(permitting a court to consider a fact undisputed for purposes of summary judgment when a 

nonmovant fails to properly address another party’s assertion of fact).

A review of the summary judgment evidence in this case, submitted by Defendant and 

viewed in light most favorable to Plaintiff, shows that the evidence before the court could not lead 

to different factual findings and conclusions. In other words, summary judgment is appropriate. 

The court understands that Plaintiff is bringing claims concerning the denial of medical care and 

medication. (Doc. No. 1, at 4.) The summary judgment evidence reveals, however, that Plaintiff 

failed to exhaust his administrative remedies on these claims prior to filing this action in federal 

court. 

It is well-settled that inmates must exhaust any and all administrative remedies before 

proceeding in federal court. See Gonzalez v. Seal, 702 F.3d 785, 787 (5th Cir. 2012) (explaining 

that pre-filing exhaustion is both mandatory and non-discretionary). Congress enacted the Prison 

Litigation Reform Act (“PLRA”) in 1996, which mandated that no action shall be brought by a 

prisoner “until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 

The purpose of the prison exhaustion requirement is to “provide administrators with a fair 

opportunity under the circumstances to address the problem that will later form the basis of the 

suit.” See Bisby v. Garza, 342 F. App’x 969, 971 (5th Cir. 2009); see also Patterson v. Stanley, 

547 F. App’x 510, 511 (5th Cir. 2013) (explaining that the primary purpose of a grievance is to 

give prison officials fair opportunity to address the problem that will later form the basis of the 

lawsuit); Johnson v. Johnson, 385 F.3d 503, 516 (5th Cir. 2004) (interpreting the exhaustion 

requirement in light of its purpose, which “include the goal of giving officials time and opportunity 

to address complaints internally”) (internal quotations and citation omitted). 

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The exhaustion provision was unanimously upheld by the Supreme Court in Booth v. 

Churner, 532 U.S. 731 (2001). The Court subsequently held that exhaustion is mandatory, and that 

the requirement will not be excused when an inmate fails to properly exhaust his administrative 

remedies. Woodford v. Ngo, 548 U.S. 81, 84 (2006). Proper exhaustion means that an inmate must 

not only pursue all available avenues of relief but must also comply with all administrative 

deadlines and procedural rules. Id. at 90–91. The Fifth Circuit reiterated the principle that “[p]refiling exhaustion is mandatory, and the case must be dismissed if available administrative remedies 

were not exhausted.” Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012).

The Supreme Court elaborated further about the exhaustion requirement in Jones v. Bock, 

549 U.S. 199 (2007). The Court noted that “[t]here is no question that exhaustion is mandatory 

under the PLRA and that unexhausted claims cannot be brought in court.” Id. at 211. The Court 

added, however, that the “failure to exhaust is an affirmative defense under the PLRA, and that 

inmates are not required to specifically plead or demonstrate exhaustion in their complaints.” Id. 

at 216. In light of Jones v. Bock, the Fifth Circuit provided guidance concerning how the 

exhaustion question should be handled in Dillon v. Rogers, 596 F.3d 260 (5th Cir. 2010). The 

following procedures were outlined:

As a final matter, we now provide a brief summary of how district courts should 

approach exhaustion questions under the PLRA. When the defendant raises 

exhaustion as an affirmative defense, the judge should usually resolve disputes 

concerning exhaustion prior to allowing the case to proceed on the merits. If the 

plaintiff survives summary judgment on exhaustion, the judge may resolve disputed 

facts concerning exhaustion, holding an evidentiary hearing if necessary.

Id. at 272–73. A prisoner’s failure to exhaust certain claims before filing suit in federal court is 

fatal to those unexhausted claims only. See Jones, 549 U.S. at 924 (“There is no reason failure to 

exhaust on one [claim] necessarily affects any other.”). 

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Here, Defendant’s summary judgment evidence reveals that the Gregg County Jail (“the 

Jail”) has a written grievance procedure for inmates seeking to exhaust their administrative 

remedies, which is detailed in the Inmate Handbook.1(Doc. No. 16-3.) The Jail provides grievance 

forms for inmates which have the appropriate sections to mark and write their grievance. (Doc. 

No. 16-1, at 2–3.) Grievance forms are designed as a triplicate form. Id. at 2. When jail staff pick 

up a request form, they sign and date the form and then give a copy to the inmate. Id. When jail 

staff return the request form to the inmate with a response, it is signed and dated by the jail staff, 

and a copy of the signed and dated copy is given to the inmate. Id.

Upon receipt of a grievance, the Grievance Officer reviews the grievance and determines 

the appropriate action to redress the grievance. Id. The Grievance Board submits a written response 

to the inmate within 15 days. Id. If the inmate disagrees with the response of the Grievance Board, 

he may appeal the decision to three levels. Id. at 2–3. The first appeal is submitted to the Facility 

Lieutenant. Id. at 3. The second appeal of the Facility Lieutenant’s decision is submitted to the Jail 

Administrator. Id. The third appeal of the Facility Administrator’s decision is submitted to the 

Sheriff. Id. The Sheriff’s decision is final. Id. This grievance documentation is placed in the 

inmate’s jail file. Id. 

The Jail also utilizes a kiosk system which allows an inmate to submit communications 

regarding various topics, including grievances and grievance appeals, electronically. Id. When an 

inmate submits a grievance using the kiosk, the inmate chooses the “Grievance” tab and types in 

1 This court has previously considered claims asserted by inmates alleging violations of their rights by the Gregg 

County Jail and its employees. In those cases, the court has required inmates seeking to pursue a federal claim to first 

exhaust administrative remedies under the Jail’s grievance procedure. See Kimble v. Cerliano, No. 6:20-CV-00172, 

2020 WL 8225360, at *4 (E.D. Tex. Dec. 2, 2020), report and recommendation adopted, No. 6:20-CV-00172, 2021 

WL 203431 (E.D. Tex. Jan. 20, 2021); Muckleroy v. White, No. 6:19-CV-363, 2020 WL 5191317, at *3 (E.D. Tex. 

Aug. 6, 2020), report and recommendation adopted, No. 6:19-CV-00363, 2020 WL 5118045 (E.D. Tex. Aug. 31, 

2020); Perkins v. Gregg Cnty. Jail, No. 6:18-CV-196, 2018 WL 6919523, at *3 (E.D. Tex. Sept. 17, 2018), report 

and recommendation adopted, No. 6:18-CV-196, 2019 WL 79363 (E.D. Tex. Jan. 2, 2019).

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his grievance. Id. at 3. The grievance is then transmitted to the designated officers serving in the 

Grievance Board position. Id. The process for review, response, and appeal are the same when 

grievances are sent through the kiosk as they are for the paper forms. Id. The inmate does not 

receive a carbon copy, but he is able to monitor the grievance’s progress and receives his response 

through the kiosk. Id. If an inmate disputes the decision of the Grievance Board, he can appeal by 

selecting “Grievance Appeal” in the kiosk. Id. The first appeal goes to the Facility Lieutenant, the 

second appeal goes to the Facility Administrator, and the last available appeal goes to the Sheriff, 

whose decision is final. Id.

Defendant provided the two kiosk grievances Plaintiff submitted prior to filing the instant 

action. (Doc. No. 16-2, at 4–5.) Plaintiff’s grievances state: (1) “I AM FILING A GRIEVANCE 

OF DUE PROCESS, NO ACCESS TO LAW LIBRARY”; and (2) “I NEED AN 83 CIVIL 

LAWSUIT PACK”. Id. Neither of these grievances deal with the claims Plaintiff asserts in this 

action—denial of access to medical care and medication. (Doc. No. 1, at 4.) Plaintiff has not 

submitted any evidence nor provided any citations to the record to show he properly filed and 

appealed grievances regarding the claims he makes in this action. 

Defendant’s summary judgment evidence also contains an affidavit from Jeff Callaway, 

Chief Deputy and Jail Administrator at the Jail. (Doc. No. 16-1.) In the affidavit, Callaway attests 

that he reviewed Plaintiff’s grievance records, which confirmed that Plaintiff filed two unrelated 

grievances articulated above prior to initiating this action on March 2, 2023. Id. at 3. Calloway 

avowed that Plaintiff acknowledged jail rules which contained the grievance procedure, and that 

Plaintiff did not follow the grievance procedure regarding the instant claims. Id. at 3–4.

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The summary judgment evidence reveals that Plaintiff did not follow the proper grievance 

procedure for his claims. Accordingly, the court finds that Plaintiff failed to exhaust all available 

administrative remedies prior to filing this case, and thus dismissal is appropriate.

CONCLUSION

For the reasons stated above, the court RECOMMENDS that Defendant’s motion for 

summary judgment (Doc. No. 16) be GRANTED and that this action be DISMISSED without 

prejudice for Plaintiff’s failure to exhaust administrative remedies. 

Within fourteen (14) days after receipt of the Magistrate Judge’s Report, any party may 

serve and file written objections to the findings and recommendations contained in the Report. A 

party’s failure to file written objections to the findings, conclusions, and recommendations 

contained in this Report within 14 days after service shall bar that party from de novo review by 

the district judge of those findings, conclusions, and recommendations and, except upon grounds 

of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal 

conclusions accepted and adopted by the district court. Douglass v. United Servs. Auto. Ass’n, 79 

F.3d 1415, 1430 (5th Cir. 1996) (en banc) superseded on other grounds by statute, 28 U.S.C. 

§ 636(b)(1) (extending the time to file objections from ten to fourteen days).

So ORDERED and SIGNED this 14th day of July, 2023.

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