Travis Blank v. Butch Tabera

544 F. App'x 480

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 31, 2013
• Docket: 13-10167
• Status: Unpublished

Opinion

PER CURIAM: *

Travis Blank, federal prisoner # 16486078, proceeding pro se, appeals the dismissal of his civil action under 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), claiming Dr. Butch Tabera and Nurse Practitioner Jose Gomez were deliberately indifferent to his serious medical needs. The district court granted summary judgment against Blank, ruling that he had failed to exhaust his administrative remedies pursuant to the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a).

A summary judgment is reviewed de novo, applying the standard employed by the district court. See Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir.2011). Under the PLRA, a prisoner must exhaust his administrative remedies before filing a civil action against prison officials. 42 U.S.C. § 1997e(a). Such exhaustion “means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)”. Woodford v. Ngo, 548 U.S. 81, 90, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (internal quotation marks and citation omitted) (emphasis in original).

It is undisputed that Blank failed to exhaust his administrative remedies by properly completing all steps in the administrative-grievance process. See id.) 28 C.F.R. §§ 542.13 (informal grievance procedure), 542.14 (initial grievance filing), 542.15 (grievance appeals). He contends he was excused from exhausting such remedies because: he was transferred out of FCI Fort Worth on 18 February 2010; he was ill for approximately two months after being transferred; and he was subsequently placed on pre-trial home release for 14 months.

These contentions are without merit. See Lindsey v. Striedel, 486 Fed.Appx. 449, 452 (5th Cir.2012) (per curiam) (unpublished) (stating transfer to separate prison facility does not excuse failure to exhaust); Days v. Johnson, 322 F.3d 863, 867-68 (5th Cir.2003) overruled by implication on other grounds by Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (stating physical injury excuses failure to exhaust only when prisoner attempted to file grievance as soon as physically able); Williams v. Henagan, 595 F.3d 610, 619 (5th Cir.2010) (holding release from prison does not relieve obligation to exhaust). Summary judgment was proper because Blank’s illness and transfer did not excuse him from exhausting his administrative remedies and his home release did not obviate the need for exhaustion.

AFFIRMED.

* 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.