Garcia-Comacho v. Maldonado

243 F. App'x 880

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 3, 2007
• Docket: 06-40905
• Status: Unpublished

Opinion

PER CURIAM: *

Ambrosio Garcia-Comacho (Garcia), federal inmate # 19384-179, appeals, pro se, the 28 U.S.C. § 1915A and 42 U.S.C. § 1997e dismissal, for failure to state a claim and exhaust administrative remedies, of his civil rights action against Bureau of Prisons employees, brought pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). (Garcia’s motion to supplement the record on appeal with unsworn factual assertions is DENIED.)

Because Garcia has briefed only his deliberate-indifference claims against defendant Washington for disregarding his work restrictions, he has abandoned all others. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993). Our court reviews de novo both 42 U.S.C. § 1997e dismissals for failure to exhaust administrative remedies, Days v. Johnson, 322 F.3d 863, 865 (5th Cir.2003), and dismissals for failure to state a claim pursuant to § 1997e and 28 U.S.C. § 1915A, Bazroux v. Scott, 136 F.3d 1053, 1054 (5th Cir.1998) (applying same standard as that for a Fed.R.CivP. 12(b)(6) dismissal).

The district court’s failure-to-exhaust conclusion was based on Garcia’s failure to assert “deliberate indifference” at all stages of the administrative process. Neither Bureau of Prisons procedures, as related by the defendants in the record before us, nor § 1997e required such assertion, however. See Jones v. Bock, — U.S. -, 127 S.Ct. 910, 922-23, 166 L.Ed.2d 798 (2007). Garcia’s grievance forms, which alleged Washington wrongly ignored his work restrictions, were sufficient to give prison officials the requisite “fair opportunity to address the problem that ... later form[ed] the basis of the [action]”. Johnson v. Johnson, 385 F.3d 503, 517 (5th Cir.2004).

Moreover, Garcia’s complaint alleged: he had a work restriction; Washington knew of it, but made him work in violation of it; and such action led to severe harm. If accepted as true, these allegations are sufficient to avoid dismissal for failure to state a claim under §§ 1915A and 1997e and Fed.R.CivP. 12(b)(6). See Calhoun v. Hargrove, 312 F.3d 730, 734-35 (5th Cir.2002).

Accordingly, the dismissal of Garcia’s deliberate-indifference claim against Washington in his individual capacity is vacated, and we remand for further proceedings in accordance with this opinion. In all other respects, the district court’s dismissal is affirmed.

AFFIRMED IN PART; VACATED AND REMANDED IN PART; MOTION DENIED.

* 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.