Kuykendall v. TDCJ Executive Dir, et al

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
October 22, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-20367
Conference Calendar
MICHAEL KUYKENDALL,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF CRIMINAL JUSTICE
EXECUTIVE DIRECTOR; TEXAS BOARD OF
CORRECTIONS; WAYNE SCOTT; R. THALER,
Warden; MARIA I. LUNA, Defendants sued
in their individual and official capacity;
GARRY JOHNSON; UNIVERSITY OF TEXAS MEDICAL
BRANCH; RANDALL HEALY, Dr.,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CV-3986
--------------------
Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Michael Kuykendall, Texas prisoner # 737934, appeals the
district court’s dismissal without prejudice of his 42 U.S.C.
§ 1983 complaint for failing to exhaust administrative remedies.
He maintains that he may proceed on his claims involving his
medical condition – that prison officials improperly placed him

-- 1 of 3 --

No. 03-20367
-2-
in a cell with an inmate who had Hepatitis C, causing Kuykendall
to contract the disease, and that defendant Healy refused to
treat Kuykendall’s disease before it had progressed – because the
Texas Department of Criminal Justice does not have authority over
medical staff. Kuykendall’s assertions regarding his improper
housing assignment involve prison life and were within the
control of prison officials, so exhaustion was required. See
Porter v. Nussle, 534 U.S. 516, 524-32 (2002). The evidence
presented by Kuykendall establishes that the prison had some
formalized method of considering complaints about medical staff
available to prisoners. See 42 U.S.C. § 1997e(a). Kuykendall
has not established that the district court erred in granting
summary judgment in favor of the defendants on this ground.
See Fraire v. City of Arlington, 957 F.2d 1268, 1273 (5th Cir.
1992).
Kuykendall also contends that he properly exhausted his
remedies with respect to his claim that he was not allowed to
attend State Classification Committee (SCC) meetings after Warden
Thaler implemented a policy and his claim that defendant Luna
delayed his release from administrative segregation by denying
him a chance to enter a gang denouncement program. Kuykendall’s
grievance does not address Luna’s failure to admit him into the
denouncement program, and he did not exhaust his remedies on this
ground. See Porter, 534 U.S. at 524-32.

-- 2 of 3 --

No. 03-20367
-3-
Kuykendall did, however, exhaust his remedies with respect
to his claim that he was denied due process by his inability to
attend an SCC hearing in March 2001 as a result of Thaler’s
policy. He is not, however, entitled to relief on this ground,
as he does not have a liberty interest in his classification as a
gang member or in his nonplacement in administrative segregation.
See Sandin v. Conner, 515 U.S. 472, 485 (1995); Harper v.
Showers, 174 F.3d 716, 719 (5th Cir. 1999). Consequently, the
judgment of the district court is AFFIRMED.

-- 3 of 3 --