Apparajan Ganesan v. Faye Ross and Gayle Anderson--Appeal from 32nd District Court of Mitchell County

Opinion filed May 10, 2007

In The

Eleventh Court of Appeals

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   No. 11-06-00095-CV

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   APPARAJAN GANESAN, Appellant

V.

FAYE ROSS AND GAYLE ANDERSON, Appellees

On Appeal from the 32nd District Court

Mitchell County, Texas

Trial Court Cause No. 14829

M E M O R A N D U M O P I N I O N

Apparajan Ganesan is an inmate in the Texas Department of Corrections. Ganesan filed suit in Childress County against several defendants because he was forced to provide a blood sample for DNA purposes. Faye Ross and Gayle Anderson appeared and filed a motion to transfer venue. The trial court granted their motion and transferred the case to Mitchell County. Ross and Anderson then filed a motion to dismiss. The Mitchell County trial court granted this motion and dismissed all claims against them. Ganesan appealed, complaining of the venue transfer and the dismissal order. Because Ganesan did not exhaust his administrative remedies before suing Ross and Anderson, we affirm.

Ganesan was convicted of solicitation to murder his spouse and was sentenced to ten years imprisonment. See Ganesan v. State, 45 S.W.3d 197 (Tex. App.CAustin 2001, pet. ref=d). Ganesan alleges that on May 9, 2002, a DNA sample was forcibly taken from him while he was incarcerated at the Roach Unit.[1] He filed a grievance complaining that, because he was convicted of solicitation of murder rather than attempted murder, he was not required to provide a DNA sample. The Texas Department of Criminal Justice and the Texas Department of Public Safety notified him by separate correspondence dated June 19, 2002, that his DNA sample and all records pertaining to it had been destroyed. Ganesan advises this court that he then filed suit in late 2002 against several individuals B but not including Ross or Anderson B to ensure that his records had been purged and to prevent any further attempts to illegally collect a DNA sample. Ganesan was subsequently moved to the Sander Estes Unit, to the Neal Unit, and then to the Wallace Unit. Ganesan alleges that each time he was moved prison officials at the receiving unit attempted to collect a DNA sample. Ganesan contends that on May 25, 2005, after he arrived at the Wallace Unit, Ross and Anderson attempted to obtain a DNA sample and that they threatened him when he did not cooperate. Ganesan added Ross and Anderson as parties on May 31, 2005.

Inmates are provided a grievance system and are required to exhaust their administrative remedies under this system prior to filing suit. Tex. Gov=t Code Ann. ' 501.008 (Vernon 2004). Ganesan=s original petition alleged a cause of action under 42 U.S.C. ' 1983. Federal law requires inmates to exhaust any available administrative remedy before bringing a Section 1983 action. 42 U.S.C. ' 1997e(a). Ganesan=s grievance was filed in 2002, and the relief he requested B destroying his sample and DNA record and providing him with verifiable notification of this action B was granted. The acts he alleges that Ross and Anderson took occurred approximately three years later and, therefore, were not described in that grievance.

Ganesan argues, citing Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004), that he was not required to file a new grievance each time he was moved to a new unit and a new attempt was made to take a DNA sample. Johnson involved an individual who alleged that he was repeatedly beaten and sexually assaulted during an eighteen-month period of incarceration. Johnson contended that prison officials failed to protect him by housing him in safekeeping even though they knew that he was at-risk for violence and even though he reported several incidents of violence and abuse. The Fifth Circuit noted that inmates were required to exhaust their administrative remedies so that prison officials were given time and opportunity to address complaints internally. Id. at 516. Because TDCJ officials knew that Johnson was allegedly being repeatedly assaulted and had been denied a transfer to safekeeping status, it was unnecessary for him to file a new grievance after each assault. Id. at 521. This ruling, however, was limited to complaints about ongoing physical abuse by the general prison population. The court held that it did not extend to specific allegations of misconduct by two prison guards because Johnson=s grievances would not have alerted prison officials to their behavior or given them the opportunity to remedy any misconduct. Id. at 522.

Ganesan=s 2002 grievance alerted prison officials to his complaint that he had been illegally forced to provide a DNA sample at the Roach Unit. That grievance did not, and obviously could not, have advised them that subsequent attempts would be made to take DNA samples at other units or that other prison officials would improperly threaten him if he did not cooperate. Even considering Ganesan=s factual statements that have no supporting record reference and each document in his appendix, there is no indication that Ganesan ever filed a grievance complaining of Ross and Anderson=s actions. Consequently, prison officials were never given the opportunity to investigate their behavior or remedy any misconduct, and Ganesan failed to exhaust his administrative remedies before suing them.

Because Ganesan failed to exhaust his administrative remedies before suing Ross and Anderson, his claims against them are barred by Section 501.008 and Section 1997e(a). The trial court did not err when it granted Ross and Anderson=s motion to dismiss. Ganesan=s first issue is overruled. This ruling makes it unnecessary to address the remainder of Ganesan=s issues. Tex. R. App. P. 47.1.

The judgment of the trial court is affirmed.

PER CURIAM

May 10, 2007

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]Ganesan=s briefing is replete with factual references B but no citations to the record, and his appendix contains documents that are beyond the record. Because the operative facts are clear and undisputed, we will exercise our discretion to consider this material rather than order Ganesan to file briefs in compliance with the rules.