IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-40666

Summary Calendar

CHRISTOPHER LINDSEY,

Plaintiff-Appellant

v.

M. STRIEDEL, Warden

Defendant-Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:10-CV-364

Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.

PER CURIAM:*

Christopher Lindsey, Texas prisoner # 74054279, filed a 42 U.S.C. § 1983

complaint against the Coastal Bend Detention Center alleging unconstitutional

conditions of confinement. He thereafter amended his complaint to allege that

Sergeant White and Correctional Officer Freeze used excessive force against him

on November 14, 2010, and that Warden M. Striedel subjected him to excessive

force on November 17, 2010. After an evidentiary hearing, Lindsey voluntarily

dismissed all claims and all defendants, with the exception of his excessive-force

United States Court of Appeals

Fifth Circuit

F I L E D

August 17, 2012

Lyle W. Cayce

Clerk

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.

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claim against Striedel. Striedel moved to dismiss the remaining claim pursuant

to Federal Rule of Civil Procedure 12(b)(6) on the basis that Lindsey had failed

to exhaust administrative remedies. The district court granted the motion.

Lindsey contends that he was unable to exhaust administrative remedies

because all of his property was removed from his prison cell after his altercation

with Striedel and was not returned until he was transferred to another facility;

Lindsey argues that he consequently lacked the ability and the materials to file

a grievance. He additionally alleges that he exhausted the only remedy that was

available to him by contacting various court employees and his court-appointed

counsel regarding his complaint. Lindsey also argues that his failure to exhaust

administrative remedies should be excused because his ability to file a grievance

was impeded by his inability to access an adequate law library.

This court reviews de novo the grant of a motion to dismiss pursuant to

FED. R. CIV. P. 12(b)(6). Shanbaum v. United States, 32 F.3d 180, 182 (5th Cir.

1994). In reviewing a Rule 12(b)(6) motion, the “court accepts all well-pleaded

facts as true, viewing them in the light most favorable to the plaintiff.” In re

Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (internal

quotation marks and citations omitted). 

Under 42 U.S.C. § 1997e(a), “[n]o 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 court has taken

a strict approach to the exhaustion requirement. Dillon v. Rogers, 596 F.3d 260,

268 (5th Cir. 2010). Proper exhaustion is required, meaning that the inmate

must not only pursue all available avenues of relief but must also comply with

all administrative deadlines and procedural rules. Woodford v. Ngo, 548 U.S. 81,

90-91 (2006). 

Lindsey has failed to allege a valid basis to excuse his failure to exhaust

the applicable grievance procedure. The record belies Lindsey’s contention that

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he could not file a grievance because all of his property, including the materials

needed to file a grievance, was confiscated. The record establishes that, within

the time period for exhausting his remedies, Lindsey had the necessary property

and the ability to file pleadings in the district court that set forth the relevant

facts underlying his allegations. Lindsey does not identify any further materials

or resources that were needed specifically to file a grievance and does not explain

why he could not have filed a grievance using the same property used to file his

district court pleadings. To the extent that Lindsey suggests that he exhausted

his remedies by contacting court employees and his court-appointed counsel, his

claim is unavailing because these acts were procedurally defective and did not

meet his obligation to exhaust his claims in compliance with the applicable

grievance procedure. See Woodford, 548 U.S. at 83-84. 

Likewise, Lindsey has failed to show that his failure to exhaust remedies

should be excused because he was transferred to another facility. Lindsey does

not contend that there were any problems at the new facility that prevented him

from filing grievances regarding the incident at the Coastal Bend Detention

Center and has not alleged how his transfer otherwise impeded his ability to file

a grievance within the required time period. See Dillon, 596 F.3d at 267-68. 

He furthermore has not shown that he should be excused from exhaustion

because he was denied access to an adequate law library. He does not set forth

any specific legal materials that were withheld or articulate how a deficient law

library or lack of legal resources prevented him from filing a timely grievance. 

Cf. Lewis v. Casey, 518 U.S. 343, 351-54 (1996) (holding that an inmate alleging

denial of access to the courts must show an actual injury). 

Accordingly, Lindsey did not properly exhausthis administrative remedies

and has not articulated any basis upon which his failure to exhaust should be

excused. The district court therefore did not err in dismissing his complaint. 

See Woodford, 548 U.S. at 83-84.

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Lindsey additionally raises a number of claims regarding the propriety of

the district court proceedings. He argues that he should have been permitted to

present this case to a jury and been provided relevant evidence. Lindsey further

contends that the magistrate judge (MJ) lacked authority to preside over the

proceedings and exhibited bias in her rulings. He also alleges that the district

court erroneously denied his request for the appointment of counsel. 

These claims are unavailing. Lindsey has not established that he properly

exhausted his administrative remedies and, therefore, he has not shownthat the

merits of his claims should be presented to a jury; he likewise is not entitled to

have a jury determine whether he exhausted his claims. See Dillon, 596 F.3d at

272. To the extent that Lindsey argues that he was denied discovery before his

complaint was dismissed, his claim lacks merit. He has not demonstrated that

the production of additional materials would have established that he properly

exhausted his administrative remedies or that his failure to exhaust should be

excused. Furthermore, the record shows that Lindsey expressly consented to

having the MJ preside over the proceedings, and her adverse rulings do not

establish bias. See Liteky v. United States, 510 U.S. 540, 555 (1994). Lindsey

also has not shown that this case, which was not factually or legally complex,

involved exceptional circumstances that required the appointment of counsel. 

See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). 

Finally, Lindsey has moved for leave to file an out-of- time reply brief. We

greatly disfavor all extensions of time for filing reply briefs. 5TH CIR. R. 31.4.4. 

Lindsey’s motion, which effectively repeats the substantive arguments that he

set forth in his primary brief, presents no compelling reason for us to permit the

untimely filing of his reply brief. Accordingly, the motion should be DENIED.

AFFIRMED

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