Durwin Abbott v. Percy Babin, Tyrone Kilbourne, and Steve Radar

Summary

The Fifth Circuit affirmed the dismissal without prejudice of Durwin Abbott’s 42 U.S.C. § 1983 excessive-force claim because he failed to properly exhaust available administrative remedies under the Prison Litigation Reform Act. Abbott’s grievance was rejected for presenting multiple incidents, and his resubmission did not cure that procedural defect. The court explained that he could pursue exhaustion again by filing a procedurally proper grievance concerning the November 11, 2011 incident.

Holdings

1. Abbott failed to properly exhaust his administrative remedies because his grievance was rejected at screening for presenting multiple incidents, and he resubmitted the same procedurally defective complaint without curing the defect.
2. The Secretary's use of a second-step response form did not excuse Abbott's failure to submit a procedurally proper administrative grievance.
3. The district court properly granted summary judgment to defendants and dismissed Abbott's § 1983 action without prejudice.

Questions Presented

1. Whether Abbott properly exhausted available administrative remedies before filing his § 1983 action.
2. Whether the district court properly granted summary judgment and dismissed the action without prejudice for failure to exhaust.
3. Whether use of a second-step administrative-response form excused Abbott's failure to submit a procedurally proper grievance.

Disposition

affirmed