Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should *

not be published and is not precedent except under the limited circumstances set forth in

5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-30126

Summary Calendar

RICHARD ANTHONY HEMPHILL,

PlaintiffSAppellant

v.

RICHARD INGLESE, Medical Director of the St. Tammany Parish Jail;

GARY BENSCEK, Doctor

DefendantsSAppellees

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:07-CV-5565

Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Richard Anthony Hemphill filed suit under 42 U.S.C. § 1983 against

various parties, alleging violations of the Eighth Amendment for denial of proper

medical treatment while incarcerated at St. Tammany Parish Jail. The

magistrate judge dismissed Hemphill’s suit for failure to exhaust his

administrative remedies. We affirm. 

United States Court of Appeals

Fifth Circuit

F I L E D

January 7, 2010

Charles R. Fulbruge III

Clerk

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I. FACTUAL AND PROCEDURAL BACKGROUND

Hemphill arrived at St. Tammany Parish Jail with stitches in his face and

mouth. Over the course of many months, Hemphill received treatments for pain

and vision problems stemming from his injuries. In his complaint, he alleged

that he did not receive other recommended treatments. Hemphill brought suit

against the St. Tammany Parish Coroner’s Office, Dr. Peter Galvan, Dr. Richard

Inglese, and Dr. Gary Benscek. The magistrate judge dismissed the Parish

Coroner’s Office and Galvan in an unappealed order. 

Inglese and Benscek (“Defendants–Appellees”) filed a motion for summary

judgment, arguing that Hemphill failed to exhaust his administrative remedies.

See 42 U.S.C. § 1997e(a). In support of their motion, Defendants–Appellees

provided Hemphill’s medical records and an affidavit of Deputy Warden Greg

Longino explaining the St. Tammany Parish Jail’s administrative remedy

procedure (“ARP”). In response, Hemphill provided documents showing that he

requested an ARP form and complained about his medical treatment. The

magistrate judge granted the motion for summary judgment, and Hemphill

timely appealed.

II. ANALYSIS

We review the magistrate judge’s grant of summary judgment de novo.

United States v. Lawrence, 276 F.3d 193, 195 (5th Cir. 2001) (citation omitted).

Summary judgment is appropriate when, after considering the pleadings,

depositions, answers to interrogatories, admissions on file, and affidavits, “there

is no genuine issue as to any material fact and . . . the moving party is entitled

to a judgment as a matter of law.” FED. R. CIV. P. 56(c). 

The Prison Litigation Reform Act of 1995 (“PLRA”) provides that “[n]o

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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.” 42 U.S.C. § 1997e(a). In cases covered by the PLRA, exhaustion is

mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002).

“The PLRA’s exhaustion requirement apples to all inmate suits about

prison life, whether they involve general circumstances or particular episodes,

and whether they allege excessive force or some other wrong.” Id. at 532. We

have held that “quibbles about the nature of a prisoner’s complaint, type of

remedy sought, and the sufficiency or breadth of prison grievance procedures”

were foreclosed by the broad scope of the PLRA. Wright v. Hollingsworth, 260

F.3d 357, 358 (5th Cir. 2001) (citing Booth v. Churner, 532 U.S. 731, 741 n.6

(2001)).

According to the Longino affidavit, St. Tammany Parish Jail uses a twostep ARP. The inmate must first submit an ARP form within ninety days of the

incident giving rise to the grievance (in lieu of the form, an inmate may submit

a written communication clearly labeled “this is a grievance through the ARP”).

If the inmate is not satisfied with the outcome of the first step, the inmate may

proceed to the second step: an appeal to the Sheriff. The inmate may file suit if

dissatisfied with the response to the second step.

In their motion for summary judgment, Defendants–Appellees asserted

that Hemphill had not completed even the first step of the ARP. In opposition,

Hemphill produced written communications demonstrating that he complained

to prison officials regarding his medical care. In one of those communications,

Hemphill requested an ARP form. Based on his submissions, Hemphill argues

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(1) that he has established a triable issue of fact as to administrative exhaustion,

and (2) because prison officials did not provide him an ARP form, the

combination of the medical complaints and the request for an ARP form satisfied

the administrative exhaustion requirement. 

Hemphill’s argument that he established a triable issue of fact as to

administrative exhaustion is without merit. Hemphill cites cases from other

circuits to support his argument that a disputed issue of fact as to

administrative exhaustion should be decided by a jury. See Braham v. Clancy,

425 F.3d 177 (2d Cir. 2005); Maraglia v. Maloney, 499 F. Supp. 2d 93 (D. Mass.

2007); Russo v. Palmer, 990 F. Supp. 1047 (N.D. Ill. 1998). We note that Braham

has been explicitly overruled by the Second Circuit, see Macias v. Zenk, 495 F.3d

37, 43–45 (2d Cir. 2007), and the Seventh Circuit effectively overruled Russo in

Perez v. Wisconsin Department of Corrections, 182 F.3d 532, 536 (7th Cir. 1999).

In Maraglia, the plaintiff claimed that he filed a grievance that was ignored.

499 F. Supp. 2d at 96. Here, Hemphill does not claim that he filed a grievance;

rather, he claims that his medical complaints and ARP form request were

enough to raise a triable issue of fact as to the satisfaction of his administrative

remedies. We disagree. 

In Woodford v. Ngo, 548 U.S. 81 (2006), the Supreme Court explained that

“proper exhaustion” under the PLRA requires the prisoner to “compl[y] with the

system’s critical procedural rules.” Id. at 90. The Supreme Court reasoned that

a “prisoner who does not want to participate in the prison grievance system will

have little incentive to comply with the system’s procedural rules unless

noncompliance carries a sanction” and therefore “[t]he benefits of exhaustion can

be realized only if the prison grievance system is given a fair opportunity to

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consider the grievance.” Id. at 95. According to Woodford, Hemphill must show

that he attempted to fully comply with the jail’s administrative grievance

procedures. 

To properly exhaust his claim, Hemphill had to complete an ARP form, or

its clearly-marked equivalent, await a response, and then appeal to the Sheriff.

Hemphill did not complete even the first step of the St. Tammany Parish Jail

ARP, and thus did not properly exhaust his claim. The magistrate judge

correctly granted summary judgment to Defendants–Appellees. 

Even if the medical complaints and ARP form request satisfied the first

step of the St. Tammany Parish Jail administrative procedure, Hemphill never

appealed to the Sheriff. In Underwood v. Wilson, we accepted that the definition

of “exhaust” is “‘to take complete advantage of (legal remedies).’” 151 F.3d 292,

295 (5th Cir. 1998) (citing WEBSTER’S NEW INT’L DICTIONARY 796 (3d ed. 1981)).

We have held that complying with the first step of an administrative grievance

procedure will not suffice to exhaust administrative remedies if the grievance

procedure contemplates additional steps. See Wright, 260 F.3d at 358. Even if

Hemphill satisfied the first step of the ARP, he did not follow through with the

second step and the magistrate judge correctly granted summary judgment to

Defendants-Appellees.

III. CONCLUSION

For the reasons set forth above, we AFFIRM the magistrate judge’s grant

of summary judgment to the Defendant-Appellees.

AFFIRMED. 

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