IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

VICTOR ANDREW APODACA #2143720 §

VS. § CIVIL ACTION NO. 6:23cv156

UNKNOWN 1, et al. § 

 

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRTE JUDGE

Plaintiff Victor Andrew Apodaca filed a pro se complaint under 28 U.S.C. § 1983 

complaining of alleged violations of his constitutional rights as a prisoner in the Texas Department 

of Criminal Justice (TDCJ). The lawsuit was referred to the undersigned United States Magistrate 

Judge for findings of fact, conclusions of law, and recommendations for the disposition of the case. 

Before the Court is the motion by Defendants Legard, Engoro, Antwi, Hudson, Garren, 

and Davis seeking summary judgment due to Plaintiff's failure to exhaust administrative remedies. 

(Dkt. #44.) Plaintiff responded in opposition to the motion. (Dkt. #51.) The motion for summary 

judgment is now ripe for review. For the reasons explained below, the undersigned recommends 

that the motion be denied.

I. Plaintiff’s Allegations

Plaintiff alleges that on September 7, 2022, he was subjected to violations of the Eighth 

Amendment when Defendant Hudson sprayed an entire can of chemical spray on him when he 

was not physically resisting, followed by all Defendants’ physically assaulting him as he was 

restrained and defenseless, resulting in multiple injuries, and a manual body cavity search. (Dkt. 

#33 at 4, 7–8.) After these displays of excessive force, Plaintiff alleges that he was denied medical 

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attention for his injuries and was housed for days in a cold cell without clothing. (Id. at 8–10.) He 

seeks $500,000 in monetary damages. (Id. at 4.)

II. The Parties’ Briefs and Evidence

A. Defendants’ motion

Defendants assert that TDCJ has a 2-step grievance process to resolve issues relating to 

conditions, comprising a Step 1 grievance to prison officials and a Step 2 appeal. (Dkt. #44 at 5–

6.) To prove that fact, they have filed the portion of the TDCJ’s Offender Orientation Handbook 

that governs “Grievance Procedures for Offenders.” (Dkt. #44-1 at 85–87.) Defendants describe 

the process as follows:

A Step 1 grievance, which is reviewed by officials at the inmate’s assigned facility, 

must be filed within fifteen days of the alleged incident or challenged event. Ex. B 

at 73–74. Once an inmate receives a response to his Step 1 grievance, he then has 

fifteen days to file a Step 2 grievance to appeal an unfavorable result at the state 

level. Id. The Offender Orientation Handbook explains that offenders may either 

place a completed grievance into a grievance box themselves or hand it directly to 

a grievance investigator in their unit. Ex. B, at 73. Prior to filing a grievance, an 

inmate must also attempt to informally resolve the problem. Id.

(Dkt. #44 at 5–6.)

Defendants further assert that Plaintiff failed to exhaust that grievance process with respect 

to the events described in his complaint and that his records do not include any grievance at all 

filed within fifteen days of September 7, 2022. (Dkt. #44 at 7.) They also assert that there is no 

evidence that Plaintiff attempted to resolve his issue informally, as required by TDCJ grievance 

rules before filing a grievance. (Id.)

Defendants acknowledge that Plaintiff submitted two grievances that relate tangentially to 

this matter. First, on October 20, 2022, he submitted Grievance #2023026381, in which he 

complained of not receiving a response to an excessive force grievance he said he submitted on 

September 22, 2022. (Dkt. #44 at 7; Dkt. #44-1 at 14–19.) They attach an authenticated copy (see

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Dkt. #44-1 at 1) of that grievance to their motion, establishing that Warden Marshall responded to 

it as follows on November 2, 2022:

An investigation was conducted into your grievance. The investigation found no 

evidence to show that you have an open step 1 grievance. Evidence did show that 

you have 4 step 2 grievances that are open at this time, but none of them were open 

around the date of 09/22/2022. Grievances are picked up every work day in accords 

with policy. Nothing further action [sic] is warranted by this office about the matter.

(Dkt. #44-1 at 15.)

Plaintiff appealed that response on November 15, 2022. He asserted that “the whole issue

that is being grievanced is the fact that I turned in a step 1 on Sep-22-22 . . ..” (Dkt. #44-1 at 60–

61.) The response to that appeal, dated February 25, 2023, is:

A review of your grievance listed in your complaint shows the grievance blah blah 

blah [sic] was in fact screen [sic] appropriately. The step 1 response was appropriate 

and there was no evidence of staff misconduct or that grievances are not being 

processed according to policy. No further action warranted.

(Dkt. #44-1 at 61.)

On March 4, 2023, Plaintiff submitted another grievance, #2023080937, in which he asked 

why Grievance #2023026381 had not been answered. (Dkt. #44-1 at 28–29.) He said “am trying 

to see why I haven’t been given a response seeing how it’s dealing with a use of excessive force 

by officers in A&B pods corridor” and went on to describe the alleged events in detail. (Id. at 28.)

He said he had submitted a Step 2 grievance in November and that the response was long overdue. 

(Id. at 29.) The response, stamped returned to Plaintiff on April 14, 2023, addresses the return of 

Plaintiff’s Step 1 response rather than the Step 2 response he asserted was missing:

Your grievance has been investigated. There was a Step 2 received on 11/22/2022. 

A Step 2 grievance cannot be processed without a Step 1 attached, therefore your 

Step 1 grievance #2023026381 would have been received by you prior to 

submitting your Step 2. No further action is warranted.

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(Id. at 28–29.) A memorandum in the grievance file indicated that the Step 2 grievance about which 

Plaintiff was inquiring had been processed but not yet received at the Michael Unit as of March 

17, 2023. (Id. at 33.)

Defendants observe that both the grievances described above concern allegedly missing 

grievance responses, and that there is no grievance in Plaintiff’s file directly pertaining to the actual 

events that form the basis of this lawsuit. (Dkt. #44 at 9.) Accordingly, Defendants assert that they

are entitled to summary judgment due to Plaintiff’s failure to exhaust administrative remedies as 

required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a).

B. Plaintiff’s response and additional summary judgment evidence

In his response, Plaintiff asserts that TDCJ officials interfered with his efforts to exhaust 

his administrative remedies by refusing to process his original grievance about the events 

underlying this suit and denying his having turned it in even though his submission should have 

been on camera. (Dkt. #51 at 5.) He thus alludes to his allegation in his sworn amended complaint 

about having submitted that grievance:

Plaintiff is further advising this Honorable Court that on September 22, 2022, 

Plaintiff was taken to medical. While being taken to medical Plaintiff took his Step1 grievance from this incident(s) himself to the grievance box on 12 Bldg B-pod 2-

Row “12-B-27” 2-section at 9:30 a.m. addressing these issues which came up 

missing.

(Dkt. #33 at 10.) Because this statement is asserted to be true and correct under penalty of perjury 

(id. at 5), the Court considers it among the summary judgment evidence in the record. See King v. 

Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (“A plaintiff's verified complaint can be considered as 

summary judgment evidence to the extent that it comports with the requirements of Fed. R. Civ. 

P. 56(e).”). 

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III. Legal Standards

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.

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. 

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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.

IV. Discussion and Analysis

Congress enacted the PLRA in 1996, mandating that no action shall be brought by a 

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

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). 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) 

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(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 purposes, which 

“include the goal of giving officials time and opportunity to address complaints internally.”) 

(internal quotations and citation omitted).

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

Churner, 532 U.S. 731 (2001). The Supreme 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 recently reiterated 

the principle that “[p]re-filing 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 explained 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 Fifth 

Circuit has explained the procedures to be followed with regard to claims of failure to exhaust:

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.

Dillon v. Rogers, 596 F.3d 260, 272–73 (5th Cir. 2010). 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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The record in this case contains conflicting evidence about whether Plaintiff exhausted his 

administrative remedies. On one hand, Defendants assert that he did not and point to the 70 pages 

of grievance records that the grievance custodian testifies are all the grievances he submitted 

between September 1, 2022 and July 24, 2023, which do not contain a grievance directly pertaining 

to the events underlying this suit. (Dkt. #44-1.)

But on the other hand, Plaintiff attests in a sworn pleading that he did submit such a 

grievance. (Dkt. #33 at 10.) Defendants cite case law for the proposition that vague and conclusory 

allegations that a prisoner submitted a grievance that disappeared cannot satisfy the exhaustion 

requirement. (Dkt. #44 at 6–7.) But Plaintiff’s assertion does not fall into that category.

First, as already observed, Plaintiff’s statement is in a sworn amended complaint. And he 

provides the date, time, and location of his submission and even states that it should have been 

captured on camera. (Dkt. #33 at 10.) The United States Court of Appeals for the Fifth Circuit has 

instructed that “[i]t is possible for a party to demonstrate the existence of a genuine issue of 

material fact through reliance on a single declaration” and held that a prisoner can create such an 

issue concerning exhaustion by filing a sworn statement that he filed grievances to which he did 

not receive a response, despite their absence from the moving defendants’ proof. Favela v. Collier, 

91 F.4th 1210, 1213 (5th Cir. 2024). Distinguishing one of the very cases upon which Defendants 

rely, the court rejected the argument that a prisoner’s assertion about a missing grievance can never 

suffice to survive summary judgment:

The defendants argue that if a litigant “can simply issue a sworn declaration that he 

did exhaust administrative remedies,” he could “self-generate an issue of material 

fact,” rendering both the summary judgment standard and the exhaustion 

requirement essentially meaningless. But even accepting that argument, Favela did 

not simply declare that he exhausted his remedies; he provided specific facts to 

counter the defendants’ prima facie showing. Moreover, he swore to the truth of 

those representations under penalty of perjury—one fact among others that 

distinguishes this case from those where we found a litigant’s written statements to 

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be insufficient. See, e.g., Kidd v. Livingston, 463 F. App’x 311, 313 (5th Cir. 2012).

Id. at 1215. Plaintiff here also provided specific facts and swore to his assertion, and the Court is 

required to accept his assertion as true for the purposes of summary judgment. Id. at 1214 

(“Presented with a declaration that was not defective . . ., the district court was required to believe 

the facts and make all justifiable inferences in Favela’s favor.”); Chester v. Samuels, 740 F. App’x 

410, 411 (5th Cir. 2018) (“A prisoner’s verified complaint is competent summary judgment 

evidence, and, as the nonmovant, we presume his verified version of any disputed fact to be true.”).

“Any assessment of that statement’s credibility is a matter for trial, not summary judgment.” 

Favela, 91 F.4th at 1215.

Moreover, additional evidence in the record arguably corroborates Plaintiff’s declaration. 

It is uncontested that he later submitted multiple grievances ostensibly seeking exhaustion of the 

grievance he says was never returned. And Defendants’ proof includes a large volume of 

grievances by Plaintiff during a ten-month period covering issues ranging from a malfunctioning 

electronic tablet to property damage from a flooding toilet. (Dkt. #44-1 at 2–3, 58–59.) As Plaintiff 

asserted in his Step 2 appeal of grievance #2023026381, “I grievance when I get done wrong, and 

to think I wouldn’t grievance an incident where I was physically injured just cause they wanted to 

hurt me [is] highly unlikely.” (Dkt. #44-1 at 61.) A fact-finder making all inferences in Plaintiff’s 

favor could reasonably find on the basis of his sworn pleading and this corroborating evidence that 

he did, in fact, submit a grievance about the events that gave rise to this lawsuit.

In other words, the record in this case demonstrates a genuine issue of material fact 

regarding whether Plaintiff exhausted his administrative remedies prior to filing suit.

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RECOMMENDATION

Accordingly, the undersigned recommends that Defendants’ motion for summary 

judgment (Dkt. #44) be DENIED.

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 fourteen days after being served with a copy shall bar that party 

from de novo review by the district judge of those findings, conclusions and recommendations 

and, except on grounds of plain error, from appellate review of unobjected-to 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).

So ORDERED and SIGNED this 26th day of February, 2024.

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