IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-60574

DARNELL WILSON, 

 Plaintiff - Appellant

v.

CHRISTOPHER B. EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT 

OF CORRECTIONS; JAMES HOLMAN, Warden at Central Mississippi 

Correctional Facility; MARGARETT BINGHAM, Superintendent at Central 

Mississippi Correctional Facility; EDDIE CATES, Classification and Moving 

Supervisor at Central Mississippi Correctional Facility, 

 Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Mississippi

Before JOLLY, HIGGINBOTHAM, and OWEN, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Darnell Wilson, Mississippi prisoner # 159643, filed a complaint in the 

district court alleging that the prison-official defendants had violated his1

constitutional rights. The magistrate judge dismissed the complaint on the 

ground that Wilson had failed to exhaust administrative remedies. In his 

primary contention on appeal, Wilson argues that the prison’s failure to 

1 Although Wilson appears to identify as a transgender woman, he generally uses male 

pronouns in his filings. For the sake of consistency and clarity, we do the same. 

United States Court of Appeals

Fifth Circuit

FILED

January 8, 2015

Lyle W. Cayce

Clerk

 

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respond to his grievances excuses his non-exhaustion. We disagree because, 

under both the particular grievance process at issue here and the settled law 

of this circuit, a prison’s failure to respond at preliminary steps in its grievance 

process does not relieve a prisoner of the duty to complete the remaining steps. 

We therefore AFFIRM.

I.

Darnell Wilson is a prisoner who, at all times relevant to this appeal, 

was housed at Central Mississippi Correctional Facility (“CMCF”). On 

September 20, 2010, Wilson filed a complaint in the district court. In the 63-

page complaint, he alleged a host of facts and incidents aimed at showing that 

the defendants—the Commissioner of the Mississippi Department of 

Corrections (“MDOC”), the warden of CMCF, and other employees of CMCF—

had violated his constitutional rights. Among these allegations were that his

uniform and linens had not been changed often enough, that he received a 

haircut against his will that was administered with unsterilized scissors, and 

that he was exposed to secondhand cigarette smoke emitted by his fellow 

prisoners. The complaint also alleged that Wilson had filed ten formal 

grievances with the prison between July 23 and August 15, 2010, that he had 

received no response to these grievances, and that the 90-day period within 

which the prison could process a grievance was too long.

The parties consented to proceed before the magistrate judge. The 

defendants then moved to dismiss on the ground that Wilson had not 

exhausted administrative remedies, pointing to statements in Wilson’s 

complaint and attaching several hundred pages’ worth of Wilson’s grievances 

and related documents. Wilson opposed the motion, asserting that the 

exhaustion requirement should be deemed satisfied because of the prison’s 

failure to respond to his grievances.

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Construing the defendants’ motion as a motion for summary judgment, 

the magistrate judge dismissed Wilson’s claims. The magistrate judge held 

that Wilson’s complaint, together with the grievance records, demonstrated 

that Wilson had failed to exhaust administrative remedies. Further, the 

magistrate judge found that Wilson had not alleged any ailment that might 

excuse his failure to exhaust, and that, though the prison had failed to respond, 

there is no “substantial compliance” exception to the exhaustion requirement 

in this circuit. Finally, the magistrate judge held that Wilson’s arguments 

about the length of MDOC’s grievance process were unavailing, as this court 

had already approved of a grievance process similar to MDOC’s. Wilson 

appeals from this dismissal. 

II.

“We review the grant of summary judgment de novo, applying the same 

standards as the district court.” Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 

2010) (internal quotation marks omitted). Those standards require the court 

to grant summary judgment if “the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a). In making this determination, the court 

should “construe all facts and inferences in the light most favorable to the 

nonmoving party.” Dillon, 596 F.3d at 266 (internal quotation marks omitted).

Failure to exhaust is an affirmative defense, such that the defendants 

have the burden of demonstrating that Wilson failed to exhaust administrative 

remedies. Jones v. Bock, 549 U.S. 199, 216 (2007). At the summary-judgment 

stage, this means that the defendants “must establish beyond peradventure all 

of the essential elements of the defense of exhaustion to warrant summary 

judgment in their favor.” Dillon, 596 F.3d at 266.

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III.

A.

Under 42 U.S.C. § 1997e(a), “[n]o action shall be brought with respect to

prison conditions under section 1983 . . . by a prisoner confined in any jail, 

prison, or other correctional facility until such administrative remedies as are 

available are exhausted.” To determine what remedies are “available” and 

thus must be exhausted, we look to “the applicable procedural rules . . . defined 

. . . by the prison grievance process itself.” Jones, 549 U.S. at 218 (citation 

omitted) (internal quotation marks omitted). Because § 1997e “requires that 

administrative remedies be exhausted before the filing of a § 1983 suit,” see

Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998), the relevant rules are those 

that governed MDOC’s grievance process at the time prior to the filing of 

Wilson’s suit. This circuit has taken a “strict” approach to § 1997e’s exhaustion 

requirement, under which prisoners must not just substantially comply with 

the prison’s grievance procedures, but instead must “exhaust available 

remedies properly.” Dillon, 596 F.3d at 268 (emphasis added).

MDOC’s grievance process is called the Administrative Remedy Program 

(“the Program”). Prior to the filing of Wilson’s suit, the Program provided for 

a three-step process that is summarized in Gates v. Cook, 376 F.3d 323 (5th 

Cir. 2004)2:

2 The Program now appears to be a two-step process in which the only appeal is to the 

Superintendent, Warden, or Community Corrections Director, who must render a final 

decision within 45 days. See MDOC Inmate Handbook, ch. VIII, available at

http://www.mdoc.state.ms.us/Inmate_Handbook/CHAPTER%20VIII.pdf. Inspection of the 

record, however, shows that MDOC forms still referred to a “3rd step” at least as late as July 

30, 2011. Thus, since Wilson filed his complaint on September 20, 2010, the three-step 

version of the Program described in Gates appears to be the appropriate version to consider 

here. Nevertheless, our analysis would not change if the new, two-step Program were already 

in place, since the summary-judgment evidence shows that, before filing his complaint,

Wilson did not receive any second-step responses and did not file his first-step grievances in 

time for MDOC’s time period for rendering a second-step response to have expired. See infra

at 7–8.

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1) the inmate writes a letter to the Superintendent/Deputy 

Commissioner in care of the Legal Claims Adjudicator that is 

referred to a respondent by the Legal Claims Adjudicator; 2) if 

dissatisfied, the inmate may request relief from the 

Superintendent/Deputy Commissioner; 3) if dissatisfied, the

inmate may appeal to the Commissioner in care of the ARP 

Administrator. The Commissioner will notify the inmate of his 

final decision within forty days of receiving the appeal. . . . . The 

ARP also provides that “[n]o more than ninety (90) days from 

initiation to completion of the process shall elapse, unless an 

extension has been granted” and that “expiration of response time 

limits without receipt of a written response shall entitle the 

offender to move on to the next step in the process.” 

Id. at 330. First-step letters are referred to as “ARPs.” Finally, MDOC 

employs a “backlogging” policy under which only one ARP is considered active 

at a time, while the rest are maintained in “backlog.”

B.

Wilson presents two arguments on appeal. First, he argues that 

summary judgment was inappropriate because the Program’s grievance 

process is “too lengthy,” “unconstitutional,” and “improper.” Second, Wilson 

contends that his administrative remedies should be deemed exhausted 

because MDOC failed timely to respond to his ARPs.

The defendants respond that the fact of exhaustion “is not at issue” 

because Wilson’s statements in his complaint conclusively demonstrate his

failure to exhaust. The defendants further argue that MDOC’s grievance 

process is permissible because, in Wilson v. Boise, 252 F.3d 1356, 2001 U.S. 

App. LEXIS 31249 (5th Cir. Mar. 30, 2001) (unpublished), this court approved 

of a backlogging procedure similar to the one employed by MDOC.

Wilson’s first argument—that the ARP’s grievance process is 

unconstitutional because it gives MDOC too much time to respond—is 

meritless. Initially, Wilson cites no authority and provides no reasoning to 

support his argument that the Constitution speaks to how long the prison’s 

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grievance process may take. Moreover, we have observed before that an 

“inquir[y into] whether administrative procedures satisfy minimum acceptable 

standards of fairness and effectiveness” is inappropriate in determining 

whether a prisoner has exhausted administrative remedies. Alexander v. 

Tippah County, 351 F.3d 626, 630 (5th Cir. 2003) (per curiam) (internal 

quotation marks omitted). Finally, to the extent that Wilson’s argument is 

aimed at MDOC’s backlogging procedure, the defendants are correct that, in 

Wilson, we recognized that backlogging is not unconstitutional, nor does it 

abrogate § 1997e’s exhaustion requirement. Wilson, 2001 U.S. App. LEXIS 

31249, at *9–10.

We turn, then, to Wilson’s second argument—that the prison’s failure to 

respond to his ARPs excused him from § 1997e’s exhaustion requirement. This 

argument deserves closer scrutiny, because, under some circumstances, a 

prison’s failure to respond to a prisoner’s grievances can result in the prisoner’s 

administrative remedies being deemed exhausted. See Gates, 376 F.3d at 331; 

Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998) abrogated on other 

grounds by Jones, 549 U.S. at 215. Such circumstances, however, are absent 

here.

Section 1997e’s exhaustion requirement is satisfied only if the prisoner 

“pursue[s] the grievance remedy to conclusion.” Wright v. Hollingsworth, 260 

F.3d 357, 358 (5th Cir. 2001). This requirement does not fall by the wayside 

in the event that the prison fails to respond to the prisoner’s grievance at some 

preliminary step in the grievance process. Instead, the prison’s failure to 

timely respond simply entitles the prisoner to move on to the next step in the 

process. Thus, it is only if the prison fails to respond at the last step of the 

grievance process that the prisoner becomes entitled to sue, because then there 

is no next step (save filing a lawsuit) to which the prisoner can advance. This 

is true both under the terms of the Program, see Gates, 376 F.3d at 330

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(“[E]xpiration of response time limits without receipt of a written response 

shall entitle the offender to move on to the next step in the process.” (internal 

quotation marks omitted)), and as a matter of the law of this circuit. See Taylor 

v. Burns, 371 F. App’x 479, 481 (5th Cir. 2010) (unpublished) (“The expiration 

of the time for the prison to respond . . . result[s] in exhaustion only if [the 

prisoner] . . . timely pursue[s] his grievance at each step of the process.” (citing

Wright, 260 F.3d at 358)); see also, e.g., Ryan v. Phillips, 558 F. App’x 477, 478 

(5th Cir. 2014) (unpublished); Mesquiti v. Gallegos, 427 F. App’x 377, 378 (5th 

Cir. 2011) (unpublished); Hicks v. Garcia, 372 F. App’x 557, 558 (5th Cir. 2010)

(unpublished).

Wilson, then, cannot maintain a suit founded on any claim that he 

presented to the prison in only a step-one ARP, irrespective of whether the 

prison responded within the time allotted for rendering step-one responses. To 

the contrary, the prison’s failure to respond will result in exhaustion of 

Wilson’s administrative remedies only if Wilson went on to file both a step-two 

and a step-three appeal—that is, only if Wilson “pursue[d] the grievance 

remedy to conclusion,” see Wright, 260 F.3d at 358—and the prison did not 

make a timely response at that point. With these principles in mind, we turn 

to whether there is a genuine issue of material fact that precludes summary 

judgment. 

The defendants rely on Wilson’s complaint to demonstrate his failure to 

exhaust. Wilson filed a form complaint, questions 6 and 7 of which deal with 

exhaustion. Question 6 asked Wilson whether he “presented to the grievance 

system the same facts and issues” alleged in the complaint. Wilson checked 

“Yes.” Question 7.C then asked Wilson to “state everything [he] did to present 

[his] grievance(s).” Wilson responded by alleging that he had submitted ten 

ARPs and complaining about the 90-day time limit for completing the ARP 

process. He also noted that he wrote a letter to the warden on August 24, 2010, 

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in which he presented some of his grievances, including his lack of a clean 

uniform and linens. Finally, Question 7.D asked Wilson to state what official 

response his grievance received, as well as whether Wilson applied for 

administrative review of the prison’s decision. Wilson answered that he

received no initial responses from his ten ARP letters, and concluded by 

lamenting that he could not get his “complaints resolved or at least addressed.”

These statements in Wilson’s initial complaint are sufficient to 

demonstrate that there is no genuine issue of material fact as to whether 

Wilson exhausted his administrative remedies. See, e.g., Hicks v. Lingle, 370 

F. App’x 497, 498 (5th Cir. 2010) (“Dismissal may be appropriate . . . when, on 

its face, the complaint establishes the inmate’s failure to exhaust.” (citing 

Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007)). As explained above, 

Wilson’s remedies are not exhausted unless Wilson proceeded through all three 

steps of the Program’s process, even if MDOC failed to respond at either of the 

preliminary steps. According to his complaint, however, Wilson did not 

proceed through all three steps of the Program’s process; instead, he completed 

only the first step of submitting ARPs, and then filed suit when those ARPs 

were not responded to in a timely fashion.

Moreover, even if we were to assume (contrary to the representations in 

Wilson’s complaint) that Wilson did move on to steps two and three after the 

prison failed to respond to his ARPs, the prison’s time limit for responding to 

his step-three appeals could not have expired by the time he filed his 

complaint. Wilson submitted his ARPs between July 23 and August 15, 2010. 

Thus, because the outer limit for how long the process can take is 90 days, see 

Gates, 376 F.3d at 330, the earliest date on which a third-step response could 

have become due was 90 days after July 23; that is, October 21. Given that

Wilson filed his complaint in the district court on September 20, 2010, it is 

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impossible for MDOC to have failed to timely respond to a third-step appeal

prior to the filing of the complaint. 

Thus, Wilson’s complaint makes clear that he neither received a finalstep response from the prison nor filed a final-step appeal and sued only after 

the prison failed to timely respond at that point. Accordingly, there is no 

genuine issue of material fact as to whether Wilson exhausted his 

administrative remedies, and summary judgment was appropriate.

IV.

In this appeal, Wilson argues that he need not have exhausted 

administrative remedies before suing because the prison’s grievance process 

was unconstitutional and because the prison failed to respond to his 

grievances. For the reasons above, we reject both arguments. The magistrate 

judge’s dismissal is, therefore,

AFFIRMED.

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