Case: 22-40415 Document: 00517051161 Page: 1 Date Filed: 01/31/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
January 31, 2024
No. 22-40415 Lyle W. Cayce
____________ Clerk
Raul Gerardo Favela, Jr.,
Plaintiff—Appellant,
versus
Bryan Collier, Individually; William Stephens, Individually;
Brad Livingston, Individually; Richard Alford, Individually;
Tommy Haynes, Individually,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:19-CV-93
______________________________
Before Graves, Higginson, and Ho, Circuit Judges.
James E. Graves, Jr., Circuit Judge:
Texas inmate Raul Gerardo Favela, Jr. alleges that prison officials
failed to prevent his assault by another inmate. He sued several Texas
Department of Criminal Justice (TDCJ) employees, alleging that they
ignored warnings that Favela was a target for violence. The district court
granted summary judgment for the employees on the grounds that Favela
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No. 22-40415
failed to exhaust his administrative remedies. Concluding that summary
judgment was inappropriate, we REVERSE and REMAND. 1
I. BACKGROUND
Favela alleges that, between October 2015 and January 2016, his
attorney wrote four letters to prison officials expressing concern that Favela
had been labeled a “snitch” and that his safety was in danger. Each letter
requested that Favela be moved to another facility. Instead, in March 2017,
an inmate attacked Favela with a small motor wrapped inside a sock. Favela
sustained injuries to his nose and eye socket, requiring surgery and causing
him significant pain.
Favela sued five TDCJ employees under 42 U.S.C. § 1983, claiming
that their failure to protect him violated his constitutional rights. On January
16, 2022, defendants Richard Alford, Bryan Collier, and Brad Livingston
moved for summary judgment. They argued, among other things, that Favela
failed to exhaust the prison’s grievance process before suing as required by
the Prison Litigation Reform Act (PLRA). The defendants attached Favela’s
grievance records, authenticated by TDCJ’s custodian of records for its
Offender Grievance Department, which did not contain any grievance
pertaining to the allegations in Favela’s complaint. Defendant Tommy
Haynes later joined the defendants’ motion. 2
In his response, Favela argued that he had in fact filed a grievance
pertaining to his claims. To substantiate that argument, Favela submitted
only his own declaration. Therein, Favela declared that he timely submitted
Step 1 and Step 2 grievances relating to his claims but never received a
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1
Judge Ho would affirm the judgment of the district court.
2
The fifth defendant, TDCJ employee William Stephens, has not appeared in this
case.
2
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response, and that he believed TDCJ was trying to frustrate any attempt he
might make to file a lawsuit.
On April 21, 2022, the magistrate judge issued a Report and
Recommendation on the defendants’ motion, concluding that Favela failed
to create a genuine issue of fact as to exhaustion. Specifically, the magistrate
judge concluded that Favela’s declaration was insufficient to carry his
summary judgment burden because it was “unsupported” and
“conclusory.”
On May 11, 2022, the district court adopted the Report and
Recommendation and entered judgment against Favela the same day. Favela
appealed to this court.
II. STANDARD OF REVIEW
The standard of review on summary judgment is de novo. Davidson v.
Fairchild Controls Corp., 882 F.3d 180, 184 (5th Cir. 2018). When a party
moves for summary judgment on an issue where that party bears the ultimate
burden of proof, it must establish a prima facie case with admissible evidence.
Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Because exhaustion of
remedies is an affirmative defense, defendants bear both the ultimate burden
of proof and the initial burden here. See Jones v. Bock,
549 U.S. 199, 216
(2007).The burden then shifts to the nonmoving party to show the existence
of a genuine issue of material fact.
Id.
III. DISCUSSION
Under the PLRA, prisoners must exhaust their administrative
remedies before filing suit under § 1983. See 42 U.S.C. § 1997e(a). A Texas
prisoner must complete that state’s two-step grievance process. Johnson v.
Johnson, 385 F.3d 503, 515–16 (5th Cir. 2004). First, he must file a Step 1
grievance within fifteen days of the relevant incident.
Id. at 515. The
grievance must provide enough detail to give officials a fair opportunity to
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resolve the problem. Id. at 517. Officials then have 40 days to resolve the Step
1 grievance. Tex. Dep’t of Crim. Just., Offender Orientation
Handbook 74 (2017), https://www.tdcj.texas.gov/documents/Offender_
Orientation_Handbook_English.pdf. If the prisoner is not satisfied with
their response, he has fifteen days to appeal by filing a Step 2 grievance.
Id.
Only after the Step 2 grievance is resolved has the exhaustion requirement
been satisfied. Johnson,
385 F.3d at 515. Indeed, to properly exhaust, an
inmate must satisfy both steps of the grievance process in accordance with
the state’s procedural rules. Woodford v. Ngo,
548 U.S. 81, 90 (2006).
Here, the defendants satisfied their initial summary judgment burden
by pointing to Favela’s grievance records, which contain numerous
grievances filed by Favela but no Step 1 or Step 2 forms pertaining to his
claims in this case. The burden then shifted to Favela to establish a genuine
issue of material fact. Favela produced his declaration, in which he stated the
following:
I filed a grievance after I was attacked within about 5 days or so
requesting I be moved, for medical treatment for the injuries
and pain, and damages for my pain and suffering and [stating]
that the injuries were [the] fault of TDCJ officials who were
notified of the danger I was in. I also filed an appeal of the
grievance rerequesting the same things in the Step 1 grievance
in a timely manner, however, I did not receive a response from
TDCJ. I believe this was done to prevent a successful lawsuit.
It is possible for a party to demonstrate the existence of a genuine issue
of material fact through reliance on a single declaration. Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc). Nevertheless, the
defendants contend that Favela’s declaration fails because it is “conclusory,
unsubstantiated, [and] self-serving.” We have explained that “conclusory
allegations, unsubstantiated assertions, or only a scintilla of evidence”
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cannot on their own create a genuine issue of material fact. Freeman v. TDCJ,
369 F.3d 854, 860 (5th Cir. 2004). The issue, then, is whether Favela’s
declaration satisfies that standard.
An assertion is conclusory if it relies on inferences without also setting
forth the facts that support those inferences. See Lujan v. Nat’l Wildlife
Fed’n, 497 U.S. 871, 898–99 (1990) (concluding that assertions that an
organization’s mission had been “significantly impaired,” its interests “had
been injured,” and it “would be irreparably harmed” were too conclusory to
establish Article III standing on summary judgment); see also Conclusory,
Black’s Law Dictionary (11th ed. 2019) (“Expressing a factual
inference without stating the underlying facts on which the inference is
based”).
Favela’s declaration is conclusory in some respects. Favela stated only
that he filed his Step 2 grievance “in a timely manner”—a statement that is
conclusory at least as to timing because it lacks any specific fact to support
the inference of timeliness. Favela could have stated whether or when he
received a response to his Step 1 grievance, or how many days passed
between such a disposition and his filing of the Step 2 grievance.
But the declaration is not devoid of specific facts. Indeed, Favela
provided the general substance of his Step 1 grievance, stated approximately
when that Step 1 grievance was filed, and noted that TDCJ failed to respond
to his Step 2 grievance. In responding to the defendants’ motion, Favela’s
burden was to “designate specific facts” showing that a genuine factual
question exists, not to prove exhaustion. Celotex, 477 U.S. at 324. Because his
declaration contains specific facts to support exhaustion, we conclude that it
is not itself conclusory.
Next, we have found declarations to be “unsubstantiated” when they
were not sufficiently “explicit and clear,” see Little, 37 F.3d at 1075
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(discussing Hopper v. Frank, 16 F.3d 92, 97 (5th Cir. 1994)), and particularly
when they were inconsistent with other, more specific evidence in the record,
Martin v. Spring Break ’83 Prods., L.L.C.,
688 F.3d 247, 253 (5th Cir. 2012).
Applying that type of reasoning, the Second Circuit, in a somewhat similar
case to this one, recently concluded that a prisoner’s declaration failed to
create a genuine issue of material fact because it “rel[ied] on . . .
unsubstantiated speculation.” Saeli v. Chautauqua County,
36 F.4th 445, 455
(2nd Cir. 2022) (quoting Fujitsu Ltd. v. Fed. Express Corp.,
247 F.3d 423, 428
(2d Cir. 2001)). There, the prisoner actually provided two pieces of evidence:
(1) a copy of his grievance form, which had been in the possession of the
defendant county, and (2) his own sworn statement.
Id. at 454. The court first
discounted the grievance form because it indicated on its face that it was not
filed on time, and the prisoner’s sworn statements were too internally
contradictory to add any clarity that helped him.
Id. at 454-55. Then, the
court explained that the sworn statement standing alone was also insufficient
to demonstrate a genuine issue of material fact as to exhaustion because it
only stated that the prisoner filed a grievance on “some unspecified date.”
Id. at 455.
The Saeli court explained that because the statement “[did] not
purport to provide the timing of the submission,” “the assertion that Saeli
submitted the form in a timely manner rests entirely on speculation based on
the face of the document, which, as discussed, is inherently inaccurate.” Id.
Something more was needed to substantiate that assertion—“even in the
form of [Saeli’s] own testimony from personal knowledge.”
Id.
In contrast, Favela’s declaration does not rely on unsubstantiated or
speculative assertions. First, Favela did more than declare that his grievance
was submitted on “some unspecified date”—he stated that his Step 1
grievance was filed about five days after the incident and that his Step 2
grievance was “timely.” Moreover, his declaration is not inconsistent with
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his other representations, nor is it less specific than, nor even inconsistent
with, the defendants’ evidence. After all, it sets forth a plausible reason for
the absence of the Step 1 and Step 2 forms from the record—his belief in
TDCJ’s desire to undermine his lawsuit.
For the same reasons as above, we also conclude that Favela’s
declaration contained more than a scintilla of evidence, 3 and that it was not
“self-serving,” at least not in the sense that it lacked genuine substance, see
Luna v. Davis, 59 F.4th 713, 716 (5th Cir. 2023) (explaining that a declaration
is fatally self-serving when its “contents [are] either conclusory, vague, or
not based on personal knowledge” (quoting Guzman v. Allstate Assurance
Co.,
18 F.4th 157, 161 (5th Cir. 2021)). 4
Presented with a declaration that was not defective in any of those
respects, the district court was required to believe the facts and make all
justifiable inferences in Favela’s favor. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). Therefore, because Favela’s declaration states that he
filed a Step 1 grievance within about five days of his attack, the inference that
he satisfied the Step 1 deadline is justifiable. And because Favela’s
declaration states that he filed a Step 2 grievance, the inference that he either
did not receive a response to his Step 1 grievance, or received an unfavorable
one, is also justifiable. And, finally, because the declaration states that
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3
A scintilla is something less than the amount of evidence necessary to support a
reasonable finding of fact. Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1086 (5th Cir. 1994)
(“A rational trier of fact might conclude that Davis’[s] allegations present a scintilla of
evidence, but a mere scintilla is not enough to defeat a motion for summary judgment.”);
see also Marathon Corp. v. Pitzner,
106 S.W.3d 724, 727–28 (Tex. 2003) (“Anything more
than a scintilla of evidence is legally sufficient to support the trial court’s finding . . . .”).
Black’s Law Dictionary defines it as “[a] spark or trace.” Scintilla, Black’s Law
Dictionary (11th ed. 2019).
4
Indeed, “[s]imply being ‘self-serving[]’ . . . does not prevent a party’s assertions
from creating a dispute of fact.” Bargher v. White, 928 F.3d 439, 445 (5th Cir. 2019).
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Favela’s Step 2 grievance was filed “in a timely manner,” the only reasonable
inference is that he filed it within the deadline. Any assessment of that
statement’s credibility is a matter for trial, not summary judgment. See id.
The defendants argue that if a litigant “can simply issue a sworn
declaration that he did exhaust administrative remedies,” he could “selfgenerate an issue of material fact,” rendering both the summary judgment
standard and the exhaustion requirement essentially meaningless. But even
accepting that argument, Favela did not simply declare that he exhausted his
remedies; he provided specific facts to counter the defendants’ prima facie
showing. Moreover, he swore to the truth of those representations under
penalty of perjury—one fact among others that distinguishes this case from
those where we found a litigant’s written statements to be insufficient. See,
e.g., Kidd v. Livingston, 463 F. App’x 311, 313 (5th Cir. 2012).
While the facts here lack a satisfying analogue in our published
opinions, we are not alone in concluding that a showing like Favela’s is
satisfactory. In Paladino v. Newsome, the Third Circuit considered whether a
New Jersey prisoner carried his summary judgment burden on exhaustion
with regard to an excessive force claim. 885 F.3d 203 (3d Cir. 2018). Like
here, the defendants produced the record of the prisoner’s past grievances
and contended that, because there were no forms relating to the excessive
force claim, the prisoner failed to exhaust.
Id. at 206. The prisoner countered
that he had filed “numerous [ ] grievances” that “have gone missing.”
Id.
To supplement that assertion, he submitted sworn deposition testimony
which included his statement “that he ‘submitted no less than six . . . forms
about [excessive force].’”
Id. at 209. The Third Circuit explained that
because that statement “set forth specific facts,” it showed that a genuine
issue of material fact existed as to exhaustion.
Id. Moreover, New Jersey, like
Texas, requires prisoners to submit their grievances according to a specific
timeline,
id. at 205—but the court did not require the prisoner to point to
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specific evidence of the precise timing of his submissions to create a genuine
issue of material fact.
Here, Favela similarly satisfied his burden of demonstrating the
existence of a genuine issue of material fact by pointing to specific facts in his
own sworn statement.
CONCLUSION
The order granting summary judgment is REVERSED and this case
is REMANDED for proceedings consistent with our opinion.
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