United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 23-20128 

____________ 

John Anthony Buchanan, 

Plaintiff—Appellant, 

versus

Coronda Harris; Detention Officer Wang, #130996; 

Nurse Brandi Hawking; Deputy Sheriff Sergeant J. 

Wheeler; William Laws; Detention Officer W. Gibson; 

Detention Officer Sergeant Pickens-Wilson; 

Detention Officer Mendoza, 

Defendants—Appellees. 

______________________________ 

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 4:19-CV-4571 

______________________________ 

Before Jones, Clement, and Wilson, Circuit Judges.

Edith Brown Clement, Circuit Judge:

*

John Buchanan is a pretrial detainee in the Harris County Jail. A 

below-the-knee amputee, Buchanan was housed for most of 2019 in a 

handicap unit. On November 8, 2019, however, jail officials transferred 

_____________________ 

*

 This opinion is not designated for publication. See 5th Cir. R. 47.5. 

United States Court of Appeals 

Fifth Circuit 

FILED 

May 2, 2024 

Lyle W. Cayce 

Clerk 

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No. 23-20128 

2 

Buchanan to a general-population unit. The next day, Buchanan filed at least 

two internal grievances, complaining that the general-population unit failed 

to accommodate his disability. Four days later, while at least one of 

Buchanan’s grievances remained pending, Buchanan filed this federal 

lawsuit, making the same claims and complaining of the same conduct as in 

his grievances. Because Buchanan failed to exhaust available administrative 

remedies before filing suit, his claims are barred. We therefore AFFIRM the 

district court’s grant of summary judgment on this basis. 

I. 

A. 

Buchanan was arrested on January 20, 2019, for aggravated assault 

with a deadly weapon and has since been a pretrial detainee at Harris County 

Jail, which is operated by the Harris County Sherriff’s Office (“HCSO”). 

Years before entering the jail, Buchanan’s right leg was amputated below the 

knee. Consequently, Buchanan uses a prosthetic limb and a walker. Shortly 

after entering the jail, Buchanan was assigned to handicap housing, where he 

resided from January 26, 2019, until November 8, 2019. Buchanan’s initial 

handicap unit, 2H1, contained “toilets with hand rails,” “showers with seats 

and hand rails,” and other amenities that accommodated his disability. 

 On November 8, 2019, however, jail officials—citing disciplinary 

issues—transferred Buchanan to a general-population housing unit that 

provided none of the disability accommodations of unit 2H1.

On November 9, 2019, Buchanan submitted at least two1

 grievances 

concerning the November 8 transfer from unit 2H1 to general-population 

_____________________ 

1

 Although the jail has record of only two grievances from Buchanan concerning, 

and immediately following, the November 8 transfer, Buchanan claims in his briefing and 

declarations to have submitted three such grievances. For reasons explained below, that 

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3 

housing. The first grievance—No. 74180—was an inmate complaint form. In 

it, Buchanan complained that the transfer violated his disciplinary due 

process and sought a return to unit 2H1. The complaint form reached 

William Laws, the Americans with Disabilities Act (“ADA”) Compliance 

Coordinator at the HCSO, who lacked authority to determine housing 

assignments, as this fell under the purview of the Medical Services division. 

On November 11, 2019, therefore, Laws requested that Medical Services 

evaluate Buchanan for a special-needs assessment, suggested that Buchanan 

be transferred to a handicap-accessible unit, and closed the complaint on his 

end. Evidently a result of Laws’s referral, Buchanan received a shower chair 

on November 13, 2019. Buchanan did not, on that date, get returned to unit 

2H1 or otherwise receive any of the other accommodations that he had in unit 

2H1.

The second grievance—No. 30622—is a letter that Buchanan mailed 

to the ADA Coordinator for the Harris County Human Resources and Risk 

Management division (“HRRM”). In the letter, Buchanan explained that he 

was an amputee and requested access to a housing unit with the following 

accommodations: (1) a shower with railings and a seat; (2) a toilet with rails 

to help him sit down and get up; (3) a bottom bunk; and (4) ADA-compliant 

sinks. Buchanan threatened to sue if the jail did not comply. The ADA 

Coordinator at the time—Coronda Harris—received Grievance No. 30622 

on November 27, 2019. In her role at HRRM, Harris lacked authority to 

investigate inmate grievances; she explained this to Buchanan in a December 

12, 2019, response letter and further noted that she had referred Grievance 

No. 30622 to HCSO for investigation. 

_____________________ 

dispute of fact is genuine but not material here and thus does not preclude summary 

judgment. 

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4 

Harris sent Grievance No. 30622 to Laws, who received the grievance 

on December 18, 2019, and began his investigation into the claims. Laws 

contacted the Medical Services division and asked them to consider 

returning Buchanan to a housing unit that would accommodate his disability. 

In his correspondence with Medical Services, Laws learned that, unrelated 

to this lawsuit, on December 11, 2019, Buchanan had been transferred to a 

handicap-accessible unit. Laws therefore deemed the matter 

“Founded/Resolved” on December 20, 2019. Yet, despite expressing his 

satisfaction with the new unit, Buchanan appealed Laws’s resolution of 

Grievance No. 30622 on December 28, 2019. The Grievance Board 

considered the matter and, on December 30, 2019, determined that 

Buchanan’s appeal was “Unfounded.”

B. 

Buchanan submitted this lawsuit to the district court on November 13, 

2019—just five days after the complained-of transfer and just four days after 

filing his two internal grievances concerning the transfer, at least one of which 

remained pending.2

 After initially suing just the HCSO, Buchanan twice 

amended his complaint, adding Harris, Laws, and Gibson. Buchanan argued 

that his transfer from unit 2H1 to general-population housing violated various 

constitutional provisions as well as the ADA. The district court dismissed the 

suit as frivolous under 28 U.S.C. § 1915(e)(2)(B). Buchanan v. Harris, No. 

CV H-19-4571, 2020 WL 3577157, at *9 (S.D. Tex. July 1, 2020). Buchanan 

appealed, and we affirmed in part, remanding Buchanan’s ADA claim for 

compensatory damages “against the defendants in their official capacity.” 

Buchanan v. Harris, No. 20-20408, 2021 WL 4514694, at *3 (5th Cir. Oct. 1, 

_____________________ 

2

 Buchanan signed the documents that attended his complaint on November 13, 

2019; his complaint was deemed filed upon receipt on November 19, 2019. 

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5 

2021). Buchanan’s ADA claim for compensatory damages against Harris, 

Laws, and Gibson—the sole defendants sued in their official capacity—is 

thus the sole remaining claim in this suit.

On remand, Buchanan sought leave to file a third amended complaint, 

proposing to add, inter alia, new claims for retaliation and alleged violations 

of the Rehabilitation Act. The district court denied that motion, holding that 

the proposed amendments fell outside the scope of the circuit court’s 

mandate for remand and would be prejudicial to the Defendants. The officials 

moved for summary judgment, arguing that (1) Buchanan failed to comply 

with the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(e) by 

not exhausting the administrative-grievance process before filing this suit, (2) 

the PLRA bars Buchanan’s claim for compensatory damages because no 

evidence showed that Buchanan’s November 8, 2019, housing transfer 

caused any physical injury beyond de minimis harm, and (3) Buchanan’s ADA 

claim is meritless because there is no evidence that the defendants’ alleged 

failure to accommodate Buchanan’s disability constitutes intentional 

discrimination. Defendants’ summary-judgment motion was the first 

instance in which they asserted this failure-to-exhaust affirmative defense.

The district court granted summary judgment for Defendants, 

holding as follows: (1) Buchanan failed to exhaust all available administrative 

remedies before filing this suit, and the Defendants did not waive this “failure 

to exhaust” affirmative defense; (2) evidence reflected at most a de minimis 

physical injury resulting from Buchanan’s November 8 transfer, and (3) 

evidence reflected no intentional discrimination in the jail’s allegedly 

unreasonable accommodation, as required for compensatory relief under the 

ADA. Buchanan appealed. 

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6 

II. 

We review a grant of summary judgment de novo, Favela v. Collier, 91 

F.4th 1210, 1212 (2024), “applying the same standard as the district court,” 

Austin v. Kroger Tex., L.P., 864 F.3d 326, 328 (5th Cir. 2017). Summary 

judgment is appropriate “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). A district court’s ruling on whether 

a party waived its affirmative defense, however, is generally subject to an 

abuse-of-discretion standard. Motion Med. Techs., L.L.C. v. Thermotek, Inc., 

875 F.3d 765, 771 n.8 (5th Cir. 2017) (collecting cases). We interpret pro se 

briefs liberally, affording all reasonable inferences that can be drawn from 

them. Tex. Comptroller of Pub. Accounts v. Liuzza (In re Tex. Pig Stands, Inc.), 

610 F.3d 937, 941 n.4 (5th Cir.2010). 

III. 

Under the PLRA, an inmate must exhaust all administrative remedies 

before filing suit. 42 U.S.C. § 1997e(a) (“No action shall be brought with 

respect to prison conditions under section 1983 of this title, or any other 

Federal law, by a prisoner confined in any jail, prison, or other correctional 

facility until such administrative remedies as are available are exhausted.”). 

This requirement applies equally to pretrial detainees as it does to convicted 

prisoners, id. § 1997e(h), and it covers claims made under the ADA, Valentine 

v. Collier, 978 F.3d 154, 165 (5th Cir. 2020). “Pre-filing exhaustion is 

mandatory,” and “district courts have no discretion to excuse a prisoner’s 

failure to properly exhaust the prison grievance process before filing their 

complaint.” Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012) (emphasis 

added); accord Ross v. Blake, 578 U.S. 632, 638–39 (2016). Importantly, even 

when an inmate seeks monetary damages, which may not be available through 

prison grievance proceedings, exhaustion is still a prerequisite to filing suit. 

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7 

Booth v. Churner, 532 U.S. 731, 740–41 (2001); Porter v. Nussle, 534 U.S. 516, 

524 (2002). 

Here, Buchanan filed this lawsuit just four days after he filed his two 

grievances. Crucially, at least one of those two grievances concerning the 

November 8 transfer—No. 30622—remained pending at the time Buchanan 

filed suit.3

 In fact, that grievance did not get resolved for another six weeks 

after Buchanan filed his federal lawsuit, and, by the time it did, Buchanan had 

been returned to fully ADA-compliant housing, as he desired. 

Buchanan advances two main arguments in rebuttal. First, he argues 

that the Defendants waived their failure-to-exhaust affirmative defense by 

raising it for the first time in their summary-judgment motion. And second, he 

argues that the jail’s administrative remedies were not actually available, and 

therefore need not be exhausted, because the officials in practice do not 

follow their own written grievance procedures. We address argument each in 

turn. 

“Failure to exhaust” is an affirmative defense in PLRA suits. Jones v. 

Bock, 549 U.S. 199, 215 (2007). An affirmative defense generally must be 

asserted “[i]n responding to a pleading,” Fed. R. Civ. P. 8(c)(1), or “in 

_____________________ 

3

 Even if we were to conclude that Grievance No. 74180 was fully resolved when 

Buchanan received a shower chair on November 13, 2019—at a time that day before 

Buchanan executed the initial complaint—this would be immaterial because Buchanan’s 

other grievance concerning the November 8 transfer—Grievance No. 30622—remained 

pending when Buchanan filed suit. Moreover, to the extent Buchanan is arguing that he 

believed that both (or all) of his grievances concerning the November 8 transfer had been 

exhausted when he received the shower chair, that position is unavailing because the mere 

fact that Buchanan may have believed his grievances to be exhausted does not mean that 

they actually were, which is of course the standard. Nor is it material in this particular case 

whether either grievance perfectly complied with the HCSO’s stated grievance 

procedures: the operative question here is whether Buchanan, in pressing his grievances 

concerning the November 8 transfer, exhausted all available administrative remedies before 

filing this suit. As explained herein, he did not, so his claims here are barred. 

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8 

the responsive pleading,” Fed. R. Civ. P. 12(b). Thus, as Buchanan 

correctly notes in his brief, this court has long held that “[a]n affirmative 

defense may be raised on a motion for summary judgment only if that motion 

is the first pleading responsive to the substance of the allegations.” United 

States v. Burzynski Cancer Rsch. Inst., 819 F.2d 1301, 1307 (5th Cir. 1987); see 

also Funding Sys. Leasing Corp. v. Pugh, 530 F.2d 91, 96 (5th Cir. 1976). 

Equally, however, this court has long recognized that “technical 

failure to comply precisely with Rule 8(c) is not fatal” where a party raises 

the defense in the trial court “in a manner that does not result in unfair 

surprise.” Allied Chem. Corp. v. Mackay, 695 F.2d 854, 855–56 (5th Cir. 

1983); accord Jones v. Miles, 656 F.2d 103, 107 n.7 (5th Cir. 1981) (“Neglect 

to affirmatively plead the defense is simply noncompliance with a technicality 

and does not constitute a waiver where there is no claim of surprise.”). 

Specifically, if a defendant raises an affirmative defense “at a pragmatically 

sufficient time, and [the plaintiff] was not prejudiced in its ability to 

respond,” the defense is not waived. Giles v. Gen. Elec. Co., 245 F.3d 474, 492 

(5th Cir. 2001); accord Arismendez v. Nightingale Home Health Care, Inc., 493 

F.3d 602, 610 (5th Cir. 2007). 

Accordingly, we have historically held that a failure to raise an 

affirmative defense like exhaustion in the first responsive pleading is 

excusable when the plaintiff has ample time to consider and respond to the 

defense in advance of trial. See Vanhoy v. United States, 514 F.3d 447, 450–51 

(5th Cir. 2008) (holding affirmative defense not waived where it was raised 

for the first time in pretrial motions three months before trial); Johnson v. 

Johnson, 385 F.3d 503, 516 n.7 (5th Cir. 2004) (holding there was no surprise 

where defendants did not “wait[] until shortly before trial” to raise 

exhaustion defense); Lafreniere Park Found. v. Broussard, 221 F.3d 804, 808 

(5th Cir. 2000) (rejecting waiver argument where issue was raised for first 

time at summary judgment because plaintiff availed itself of a fourteenCase: 23-20128 Document: 164-1 Page: 8 Date Filed: 05/02/2024
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9 

month “ample period” to file three responsive memoranda to the summaryjudgment motion and was not prejudiced in its ability to respond to the issue); 

Allied Chem., 695 F.2d at 856 (defense, although not pled, was not waived 

where included in pretrial order). 

Here, the Defendants did not raise the failure-to-exhaust affirmative 

defense in their first responsive pleadings: their answers. Nonetheless, each 

Defendant asserted the affirmative defense in their summary-judgment 

motion, which came less than three months after their answers and before a 

trial date was set. Buchanan had almost nine months to address this theory 

after it was raised and before the district court ruled on it. Buchanan first 

addressed exhaustion in his objections to the Defendants’ summaryjudgment evidence, which he filed in September 2022. Three months later, 

Buchanan again addressed exhaustion in a response to the summaryjudgment motion, noting that he understood the law concerning exhaustion 

and arguing that the defense should not apply. Thereafter, Buchanan 

addressed exhaustion in an additional response to the summary-judgment 

motion. Given that Buchanan was able to formulate his arguments to counter 

the exhaustion issue and addressed it on three occasions, the Defendants did 

not raise exhaustion in a manner that “result[ed] in unfair surprise.” 

Lafreniere, 221 F.3d at 808. 

The district court concluded the same, holding that the Defendants’ 

assertion of the failure-to-exhaust defense in their summary-judgment 

motion came at a pragmatically sufficient time and did not prejudice 

Buchanan. We cannot conclude that this ruling was an abuse of discretion. 

See Motion Med., 875 F.3d at 771 n.8.4

_____________________ 

4

 “The terms waiver and forfeiture—though often used interchangeably by jurists 

and litigants—are not synonymous”: “forfeiture is the failure to make the timely assertion 

of a right; waiver is the ‘intentional relinquishment or abandonment of a known right.’”

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10 

Buchanan’s second argument is that the administrative remedies 

supposedly offered were, in practice, not available and, thus, need not be 

exhausted. Buchanan appears to argue, for instance, that the fact that he filed 

a third grievance of which there is no record shows that the jail does not 

adhere to its own grievance procedures, and, thus, its remedies are effectively 

unavailable.5

An administrative remedy that is “officially on the books” is 

nonetheless unavailable (1) if “it operates as a simple dead end—with officers 

unable or consistently unwilling to provide any relief to aggrieved inmates,” 

(2) if it is “so opaque that it becomes, practically speaking, incapable of use,” 

such as where “some mechanism exists to provide relief, but no ordinary 

prisoner can discern or navigate it,” or (3) “when prison administrators 

thwart inmates from taking advantage of a grievance process through 

machination, misrepresentation, or intimidation.” Ross, 578 U.S. at 643–44. 

Here, the evidence shows that Laws investigated the grievance 

submitted to HCSO and actively took steps to have the Medical Services 

division address Buchanan’s concerns. Contrary to Buchanan’s argument, 

the evidence does not signal a dead end, show that the Defendants were 

_____________________ 

Hamer v. Neighborhood Hous. Servs., 583 U.S. 17, 20 n.1 (2017) (alteration adopted) (citation 

omitted). Our case law uses the term “waiver” to describe the result of an untimely 

assertion of an affirmative defense. See, e.g., Vanhoy, 514 F.3d at 450. Whether or not that 

description is technically correct, the ultimate holdings of Vanhoy and similar cases are the 

same: a delayed assertion of an affirmative defense is excusable where the assertion comes 

at a pragmatically sufficient time and is not prejudicial to the opposing party. 

5

 Buchanan avers that he submitted a third grievance regarding his November 8 

transfer and appears to argue that this disagreement between the parties concerning the 

number of grievances is a genuine dispute of material fact that precludes summary 

judgment. While the dispute may be genuine, it is not material because, as explained herein, 

at least one of Buchanan’s grievances concerning the November 8 transfer remained 

pending when Buchanan filed this lawsuit on the same subject (and was ultimately 

reviewed, investigated, and resolved, rather than leading to a dead end). 

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11 

unwilling to provide relief, reflect that the grievance process was incapable of 

use by the ordinary detainee, or indicate that the Defendants thwarted 

Buchanan from taking advantage of the grievance process. See Ross, 578 U.S. 

at 643–44. Rather, it shows that Laws ensured Buchanan’s claims were 

reviewed, investigated, and resolved—and favorably so, insofar as Buchanan 

ultimately received a fully compliant unit. And Laws’s review, investigation, 

and resolution all transpired within two days of Laws’s receipt of Grievance 

No. 30622, which detailed Buchanan’s ADA complaint and requested 

accommodations. Whereas Laws’s receipt of the grievance was delayed by 

over a month, that was because Buchanan sent the letter to the wrong 

recipient. 

In sum, the jail’s grievance procedures were not unavailable such that 

Buchanan would be excused from exhausting internal channels before suing. 

IV. 

For the foregoing reasons, we AFFIRM. Because we resolve this case 

on exhaustion grounds, we need not reach the remaining merits issues. 

Furthermore, for the same reasons that the district court provided below, we 

AFFIRM the district court’s denial of Buchanan’s motion for leave to file a 

third amended complaint. 

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