IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

RICKEY L. MCGEE #2173658 §

VS. § CIVIL ACTION NO. 6:23cv486

FNU MITCHELL, et al. § 

 

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRTE JUDGE

Plaintiff Rickey L. McGee 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 Issah, Brannan, Foust, Lakin, Rutledge, and 

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

(Dkt. #21.) Plaintiff responded in opposition to the motion, and Defendants replied in support of 

it. (Dkt. #22, 23.) The motion for summary judgment is now ripe for review. For the reasons 

explained below, the undersigned recommends that the motion be granted.

I. Plaintiff’s Allegations

Plaintiff alleges that on June 6, 2023, he was strip-searched, handcuffed, and taken to an 

office to talk with Defendant Captain Brannan1about a PREA2complaint he had filed. (Id. at 6.) 

1 Plaintiff’s misspellings of certain Defendants’ names are corrected herein to the names provided by 

Defendants in their pleadings.

2 The Prison Rape Elimination Act of 2003, 34 U.S.C. §§ 30301, et seq., is concerned with the reporting 

and prevention of rape in all state and federal prisons. 

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Captain Brannan, Sergeant Rutledge, and Lieutenant Foust were in the office when he arrived, and 

Foust sent the escort officer away. (Id.) Foust was visibly angry and ordered Plaintiff to sit down. 

When Plaintiff did not comply quickly enough, Foust pushed Plaintiff into a chair and slapped him 

in the face. (Id.) Foust then pushed Plaintiff to the floor and placed his knee on the back of 

Plaintiff’s neck until Plaintiff lost consciousness. Plaintiff awoke to Brannan’s kicking him in the 

abdomen and genitals and warning that if he received any more PREA complaints from Plaintiff, 

Plaintiff would not “leave out alive.” (Id.)

Foust sat Plaintiff back in the chair, spat in his face, and threatened him with physical and 

sexual violence. (Dkt. #1 at 7.) Brannan said they all knew about Plaintiff’s “bullshit lawsuits” and 

about his assault on a female officer Boykin, which Plaintiff says was at issue in a previous lawsuit 

he filed. Plaintiff was bleeding from the mouth and delirious and asked for medical attention. 

Brannan denied medical attention and told Plaintiff to “heal up.” (Id.)

Plaintiff was then taken to a holding cage where Defendant Foust ordered him to strip. (Id.

at 7.) Plaintiff protested that he had already been strip-searched before the meeting with Brannan, 

and Brannan responded to the effect that “either you show us your asshole or we gas you and then 

look up there ourselves the hard way.” (Id.) Plaintiff then submitted to the strip search and 

Defendants Foust and Brannan laughed as they told him to “bend over and hold in that position” 

repeatedly. (Id. at 7–8.) Plaintiff was forced to hold this position while TDCJ officers and other 

workers, both male and female, were walking past, some of whom made derogatory remarks. (Id.

at 8, 12.) Defendants Brannan and Foust then returned to the office and talked and laughed with 

Defendant Rutledge, and they ordered a search of Plaintiff’s cell “in retaliation.” (Id. at 8.)

Later that morning, Plaintiff spoke with Defendant Smith from the Office of Inspector 

General. (Dkt. #1 at 8.) He told Smith about the assault by Foust and Brannan and showed Smith 

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his busted lip, marks from the handcuffs, and swollen finger. He asked for medical attention, but 

Smith simply responded, “I really didn’t want to hear this” and went to the office to talk to Foust, 

Rutledge, and Brennan. When Smith exited the office, Plaintiff asked again about medical 

attention, and Smith responded, “they are going to take care [of] medical for you.” (Id.)

Approximately an hour later, Warden Mitchell visited the area and Plaintiff told him about 

the use of force. (Dkt. #1 at 8.) Defendant Mitchell did not come close enough to see Plaintiff’s 

injuries, saying he was “busy checking temperature” and would “get [Plaintiff] medical.” (Id. at 

8–9.)

A few hours later, Defendant Foust told Plaintiff that he was being moved to special 

observation status (SOS), which entails being housed naked and under constant observation. (Dkt. 

#1 at 9.) When Plaintiff asked for a reason, Foust said that he would “ask Mrs. Boykin.” (Id.) 

Plaintiff initially “refused this re-housing” and submitted only after Defendant Rutledge and others 

threatened him with physical harm, including Rutledge’s holding a gas cannister and threatening 

to “gas your ass.” (Id.) Plaintiff was then stripped and moved to an extremely cold cell that was 

covered in feces and blood, with a toilet overflowing with human waste, and no running water in 

the sink or toilet, where he was held for seven days. (Id.) During his stay there, Plaintiff was denied 

a mattress, water, food, tissue, and showers. (Id.) Officers told him those deprivations were “per 

captain’s orders.” (Id.)

On June 9, 2023, Defendant Issah, a medical aide, arrived at Plaintiff’s cell on medical 

rounds. (Dkt. #1 at 9.) Plaintiff showed Issah his living conditions and injuries and told him that 

he was urinating blood, but Issah responded that there was nothing he could do because Plaintiff 

was on SOS. (Id. at 9–10.)

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On June 13, 2023, Plaintiff asked Defendant Lakin for medical attention. (Dkt. #1 at 10.) 

Lakin refused, saying that Plaintiff had “brought this all on yourself” and would be fine if he would 

“keep [his] hands off women,” because everyone knew what had happened with Officer Boykin. 

(Id.)

Upon Plaintiff’s release from SOS, he was originally assigned to a cell in C-pod. (Dkt. #1 

at 10.) But when Defendant Foust learned of that assignment, he told Plaintiff “naw bitch you 

going to F-pod [where] I can get your bitch ass shut down.” (Id.) Plaintiff was thus moved to cell 

F-28, “into a less desirable part of the prison where inmates were flooding, starting fires and 

throwing bodily waste on one another.” (Id.) Later, on June 23, 2024, Defendant Foust told two 

female officer trainees that Plaintiff was “a snitch and child molester” and that “all [Foust] 

need[ed] is an excuse to bust his ass.” (Id.) Foust also encouraged other inmates to “bust this bitch 

ass child molester in his ass” to receive a reward from Foust. (Id. at 10–11.) Following these 

comments by Foust, multiple inmates threatened and attempted to hurt Plaintiff, but Foust and 

Brannan wrote false disciplinary charges against Plaintiff “to cover up their actions.” (Id. at 11.)

Finally, Plaintiff alleges that Defendant Brannan “was notorious for abusing prisoners with 

excessive force,” and that Defendant Warden Marshall “was aware of Brannan’s previous abuse 

of other prisoners in custody” but nevertheless promoted Brannan to captain and put him in a 

position to harm Plaintiff as alleged. (Dkt. #1 at 11.)

Plaintiff claims the Defendants’ actions violated his rights under the First, Fourth, Fifth, 

Eighth, and Fourteenth Amendments. (Dkt. #1 at 14–15.) He seeks a declaration that Defendants 

violated his constitutional rights as well as compensatory and punitive damages. (Id. at 15–16.)

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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. #21 at 4.) 

They cite case law describing the TDCJ’s requirement that prisoner’s file a Step 1 grievance within 

fifteen days of the event at issue, followed by a Step 2 appeal to state officials within fifteen days 

of the return of the Step 1. (Id.) They urge that both steps must be fully complete for a grievance 

to be deemed exhausted. (Id. at 5.)

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

to the events described in his complaint. (Id.) They acknowledge that Plaintiff filed one relevant 

and four potentially relevant Step 1 grievances, but they assert that he failed to file a Step 2 appeal 

of any of them. (Id.) In support of their motion, they have filed the certified records of all Plaintiff’s 

grievances from June 1, 2023 through December 19, 2023.3(Dkt. #21 at 2; Dkt. #21-1.) The 

records consist of 126 pages of grievances and related internal investigations, many of which 

concern matters not relevant to this case. In pertinent part, the records contain the following 

grievances:

1. Step 1 Grievance 2023119865, dated June 14, 2023, and received by staff on June 19, 

2023, in which Plaintiff complained about “threats and comments of a sexual nature 

made by Captain Brennan and Lt. Foust” on June 7, 2023. This grievance was returned 

to Plaintiff on July 26, 2023, with a response from Warden Marshall that the matter 

3 While Defendants’ motion specifies the date range for the grievance file produced, the custodian’s 

affidavit does not. (Dkt. #21-1 at 2.) Further, the affidavit contains information not decipherable by the 

Court, including a reference to topic “011.” (Id.) This is not the first occasion on which the Court has 

recently encountered similar deficiencies in grievance custodian affidavits submitted by counsel for TDCJ 

defendants. See Order to Supplement, Butler v. Collier, No. 6:22-347 (E.D. Tex. Jun. 20, 2023) (affidavit 

materially relied on unexplained codes); Order to Correct Affidavit, Bryant v. Pedro, No. 6:22-137 (E.D. 

Tex. Jun. 15, 2023) (affidavit swore to incorrect date range). While the deficiencies in this case are not 

material to the Court’s analysis, counsel is advised in future to thoroughly review such affidavits and ensure 

that they are suitable for their purpose.

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was investigated, his claims were uncorroborated, and no wrongdoing was found. (Dkt. 

#21-1 at 17–18.)

2. A second Step 1 Grievance form also dated June 14, 2023, complained again about the 

June 7 threats and comments by Brennan and Foust. It was returned without processing 

as redundant to Grievance 2023119865.

3. Step 1 Grievance 2023121016, dated June 14, 2023, and received by staff on June 21, 

2023, in which Plaintiff complained about being taken to the office about a PREA 

complaint on June 6, 2023, where, with Brannan present, Foust yelled at Plaintiff to sit 

down, slapped him in the face, pushed him into the chair and then onto the floor, and 

pushed his knee in the back of Plaintiff’s head, causing him to lose consciousness. 

Plaintiff claimed he awoke to Brannan’s kicking him in the stomach and privates and 

threatening him that he would not leave alive if Brannan had to do any more paperwork 

about his PREA complaints. Foust then placed Plaintiff in a chair, spat in his face, and 

threatened him. Plaintiff asked for medical attention and was refused. He was placed 

on SOS in a cell covered with feces and blood, with no clothing or mattress and a nonfunctioning toilet. His cell flooded when it rained, he was “at times” denied food and 

water “per captain’s orders,” and he remained in those conditions for seven days. He 

said he had still not received medical attention despite his reports of urinating blood. 

This grievance was returned to Plaintiff on July 5, 2023, with a response from Warden 

Marshall that the Office of the Inspector General had determined not to open an 

investigation and no further action was warranted. (Dkt. #21-1 at 28–29.)

4. Step 1 Grievance 2023122081, dated June 21, 2023, and received by staff on June 23, 

2023, in which Plaintiff complained of verbal threats made by Foust on June 13, 2023. 

That grievance was returned to Plaintiff on June 30, 2023, with a response from Warden 

Marshall that investigation did not substantiate Plaintiff's claims and no further action 

was warranted. (Dkt. #21-1 at 50–51.)

5. Step 1 Grievance 2023126231, dated July 1, 2023, and received by staff on July 5, 

2023, in which Plaintiff complained of comments made by Foust on June 23, 2023, 

including announcing that Plaintiff was a pervert and a child molester, that Foust just 

wanted a reason to “bust his ass,” and promising a cell phone to anyone who harmed 

Plaintiff. This grievance was returned to Plaintiff on July 28, 2023, with a response 

from Warden Marshall that investigation found his claims to be unsubstantiated and no 

further action was warranted. (Dkt. #21-1 at 61–62.)

6. In a Step 1 Grievance dated July 7, 2023, Plaintiff complained about Foust’s comments 

that Plaintiff was a snitch and child molester who had beaten a female guard and 

inviting others to do “something” to him and “get him.” Plaintiff stated that Foust made 

the comments on June 2, 2023. The grievance was returned to him unprocessed on July 

10, 2023, because the “[g]rievable time period ha[d] expired.” (Dkt. #21-1 at 107–08.)

7. Step 1 Grievance 2023130898, dated July 12, 2023, and received by staff on July 14, 

2023, in which Plaintiff complained of comments by Foust on July 2, 2023, that 

Plaintiff was a snitch and a child molester who had beaten a female guard, and inviting 

anyone to harm him. Plaintiff said these comments resulted in his receiving threats from 

other inmates. The grievance was returned to Plaintiff on or around October 2, 2023, 

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with a response from Warden Marshall that his claims were unsubstantiated and no 

further action was warranted.

The grievance file also contains two Step 2 grievance appeals. (Dkt. #21-1 at 115, 121.) 

However, those grievances pertain to Plaintiff’s unrelated complaints about sinus issues and 

destruction of his property. (Id.) Neither of them relates in any way to the Step 1 grievances 

relevant to this case.

Defendants argue that the availability of administrative procedures is obvious from the 

record of Plaintiff’s grievances and staff’s investigations and responses. (Dkt. #21 at 5–6.) They 

seek summary judgment due to Plaintiff’s failure to exhaust those procedures.

B. Plaintiff’s response and Defendants’ reply

Plaintiff’s response is asserted to be true and correct under penalty of perjury (Dkt. #22 at 

2), so 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).”). In it, Plaintiff asserts that “[o]n or about July 7, 2023,” he gave two Step 1 grievances 

and a Step 2 grievance to a white male correctional officer possibly named Thompson. (Id. at 1.) 

Plaintiff saw the officer give the grievances to the grievance coordinator, M. Lakin. (Id.) The Step 

2 and one of the Step 1 grievances were “in relation to a unecessary [sic] use of force and denial 

of medical attention by defendants Issah, Brannan, and Foust.” (Id.) The second Step 1 grievance 

“was in relation to denial of medical attention and failure to intervene by defendants Mitchell, 

Lakin, Foust, Brannan, Smith, Issah, Ruthledge.” (Id. at 2.)

Plaintiff asserts that he was transferred to Ferguson Unit in August 2023 and inquired about 

the status of Grievance 2023121016. (Id.) He attaches a copy of this inquiry, dated August 13, 

2024, with a staff response stating that “Grievance was opened at MI Unit and closed on 7/5/23. 

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MI Unit will send to your current unit of assignment.” (Dkt. #22-1.) Plaintiff says that he never 

received that grievance response. (Dkt. #22 at 2.) Plaintiff says that he “believe[s]” that the 

grievance coordinator, M. Lakin, destroyed one or more of his grievances to protect her husband, 

Defendant Lakin. (Id.) He claims that this “machination” prevented him from exhausting his 

administrative remedies, because prisoners may not file a Step 2 appeal if the Step 1 grievance is 

not returned. (Id.) He argues that these facts create a genuine issue of material fact regarding 

whether he exhausted available remedies. (Id.)

In reply, Defendants assert that any Step 1 grievance about the use of force, denial of 

medical treatment, and failure to intervene alleged to have occurred on June 6 through June 9, 

2023, would have been untimely pursuant to TDCJ’s rules by July 7, 2023. (Dkt. #23 at 2.)

Moreover, a Step 2 appeal submitted simultaneously with a Step 1 grievance would be 

procedurally improper and contrary to the rule requiring a Step 2 to be submitted within fifteen 

days after the return of a Step 1. (Id.) 

Defendants also argue that Plaintiff’s subjective belief that the grievance coordinator 

destroyed his grievances and his unsupported conclusion that the grievance system was made 

unavailable to him are not sufficient to create a genuine issue of material fact in the face of the 

evidence they have presented. (Id. at 2.)

Finally, Defendants argue that the response Plaintiff received to his inquiry about 

Grievance 2023121016 is consistent with their evidence that the Step 1 grievance was investigated 

and returned to him on July 5, 2023, and that the investigation and return of the grievance 

demonstrates the availability to him of the process. (Id. at 3.) They repeat their request that the 

case be dismissed in its entirety for failure to exhaust. (Id.)

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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 

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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.

IV. Discussion and Analysis

Congress enacted the Prison Litigation Reform Act (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 nondiscretionary). 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 

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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 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 

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U.S. at 924 (“There is no reason failure to exhaust on one [claim] necessarily affects any other.”).

All the steps in a grievance procedure must be pursued to exhaust administrative remedies. 

Johnson, 385 F.3d at 515. The TDCJ has a two-step formal grievance process, including a Step 

One grievance, which is handled within the facility, and a Step Two grievance appeal, which is 

handled at the state level. A prisoner must pursue a grievance through both steps for it to be 

considered exhausted. Id. This means that for TDCJ inmates to exhaust an issue properly, the issue 

must be presented in a Step One grievance and then appealed to Step Two. New issues cannot be 

raised for the first time in a Step Two grievance appeal and only one issue per grievance may be 

presented. Randle v. Woods, 299 F.App’x 466, 2008 WL 4933754 (5th Cir., Nov. 19, 2008); see 

also TDCJ Offender Orientation Handbook (“Handbook”) at 74, available at Texas Department of 

Criminal Justice, Offender Orientation Handbook (last visited Jun. 4, 2024). Any grievances that 

are submitted after fifteen days, and any grievances that are redundant to a previous grievance, are 

returned to the prisoner unprocessed. Handbook at 74–75.

The evidence presented by Defendants in this case, including 126 pages of grievance 

records summarized in pertinent part above, establishes that Plaintiff failed to exhaust his 

administrative remedies about any of the claims asserted in his complaint. Plaintiff attempts to 

create a genuine conflict in the evidence by swearing that certain grievances he submitted on July 

7 disappeared and that he never received a response to Grievance 2023121016, which covered the 

June 6 use of force, subsequent denial of medical care, and detention in an unsanitary cell. But 

Plaintiff’s efforts fail for several reasons.

First, even accepting the truth of the sworn assertions in Plaintiff’s response, no Step 1 

grievance Plaintiff submitted on July 7, 2023, could have exhausted his remedies for the events 

described in the complaint. By that date, the fifteen-day deadline to file a grievance would have 

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barred every event alleged in the complaint other than the June 23 comments by Foust inviting

others to harm the Plaintiff. But Plaintiff does not allege in his response that this incident was 

among the issues raised in the grievances he submitted on July 7. Moreover, by July 7, Plaintiff 

had already grieved those June 23 comments, in Step 1 Grievance 2023126231, dated July 1, 2023, 

which was returned to him on July 28, 2023. (Dkt. #21-1 at 61–62.) Accordingly, the record 

establishes that any grievance submitted on July 7 about any of the events at issue in this lawsuit 

would have been returned unprocessed as either untimely or redundant to a previous grievance. 

(See Dkt. #21-1 at 101–02 (returning grievance dated June 14 about June 7 threats by Brannan and 

Foust as redundant to Grievance 2023119865), 107–08 (returning grievance dated July 7 about 

June 2 comments by Foust as untimely).) As explained above, grievances that do not comply with 

applicable regulations do not constitute exhaustion under the PLRA.

And, as Defendants’ reply suggests, any Step 2 grievance submitted on July 7, 2023, would 

only be procedurally proper if it was submitted within fifteen days after and in response to an 

adverse Step 1 response. Plaintiff does not identify any Step 1 grievance response his July 7 Step 

2 submission was intended to appeal. Accordingly, his sworn statement does not establish that he 

filed a proper Step 2 appeal pertaining to any of the claims in this case.4

Finally, Plaintiff’s self-serving testimony that Grievance 2023121016 was never returned 

to him is the sort of scintilla of evidence that cannot create a genuine issue of fact in light of the 

record as a whole. See Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir. 2010) (“[T]he 

4 The Court is not required to search the record for facts in Plaintiff’s favor, but a review of the evidence 

disproves that any July 7 Step 2 grievance would have exhausted Plaintiff’s remedies. The record indicates 

that Grievance 2023121016 was returned to Plaintiff on July 5, 2023 (Dkt. #21-1 at 28–29), but his denial 

of receipt of that response defeats any inference the Court might otherwise have made that the July 7 Step 

2 appeal was from that grievance response. The record also indicates that Grievance 2023122081, about 

Foust’s alleged comments on June 13, was returned to Plaintiff on June 30 (Dkt. #21-1 at 50–51); but again, 

Plaintiff does not assert that any of Foust’s comments or threats were among the topics of the July 7 

grievances that allegedly went missing.

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nonmovant cannot satisfy its burden with ‘conclusory allegations, speculation, and unsubstantiated 

assertions which are either entirely unsupported, or supported by a mere scintilla of evidence.’”).

The Court may not make a credibility determination or weigh the parties’ evidence at this stage. 

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). But there is no genuine 

issue for trial if the record, taken as a whole, could not lead a rational trier of fact to find for the 

non-moving party. Prison Legal News v. Livingston, 683 F.3d 201, 211 (5th Cir. 2012); Austin v. 

Kroger Tex., L.P., 864 F.3d 326, 328 (5th Cir. 2017) (genuine issue of material fact exists when 

the evidence is such that a reasonable jury could return a verdict for the non-moving party).

Plaintiff’s subjective belief that the grievance coordinator destroyed any grievances is not 

an admissible fact to which he can competently testify. Moreover, it is rendered totally implausible

by the sheer volume of Plaintiff’s grievances in the record and the seriousness with which they 

were handled. Grievance 2023121016, for example, is accompanied by almost twenty pages of 

worksheets and investigation material, including a completed and detailed emergency grievance 

checklist, multiple emails between staff, an investigation report reflecting interviews of staff and 

an attempt to interview Plaintiff (who refused to speak to investigator Sammy Polk), a PREA 

investigation review, and signatures dated June 30, 2023, indicating review by a regional or central 

office supervisor, an OIG supervisor, and the grievance coordinator (Dkt. #21-1 at 30–49.) This 

comprehensive documentation concludes with the notation that the grievance response was given 

to Plaintiff on July 5, 2023. (Id. at 28.) No reasonable fact-finder reviewing all the evidence could 

find that the grievance coordinator destroyed or simply failed to return this grievance or any

grievance(s) relevant to this case.

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RECOMMENDATION

Accordingly, the undersigned recommends that Defendants’ motion for summary 

judgment (Dkt. #21) be GRANTED and that summary judgment enter in Defendants’ favor due 

to 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 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 10th day of June, 2024.

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