source: Caselaw Access Project

author: PRISCILLA R. OWEN, Circuit Judge: HAYNES, Circuit Judge,

license: Public Domain

text:
    Jay Anthony NOTTINGHAM, also known as Jay Nottingham, also known as Jeffrey Montgomery, also known as Jay Dillon, Plaintiff-Appellant, v. WARDEN, BILL CLEMENTS UNIT; Unnamed Administrative Staff; Unnamed Medical Staff, Defendants-Appellees.
    No. 15-10163
    United States Court of Appeals, Fifth Circuit.
    Filed September 9, 2016

      Jay Anthony Nottingham, Pro Se.
    ■Before PRADO, OWEN, and HAYNES, Circuit Judges.
   PRISCILLA R. OWEN, Circuit Judge:

Jay Nottingham, proceeding pro se, appeals the district court’s dismissal of this suit pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with court orders. Because we conclude that the district court did not abuse its discretion, we affirm.

I

Nottingham filed a complaint in the district court, alleging constitutional violations arising out of his incarceration in a Texas Department of Criminal Justice prison. The day he filed the complaint, Nottingham also filed an application to proceed in forma pauperis (IFP). Recognizing several defects and inconsistencies in the IFP application, Magistrate Judge AveRitte issued an order directing Nottingham to provide corrected financial disclosures by answering detailed questions in a questionnaire. Rather than comply with this order, Nottingham paid the filing fee.

Magistrate Judge AveRitte then issued an order noting that in two prior cases, Nottingham had engaged in “similar conduct” by applying' for IFP status and then paying the filing fee rather than complying with an order to provide verifiable information in support of the IFP application. The court expressed concern based on this pattern as to “whether [Nottingham’s] initial request for pauper status was proper,” and specifically directed Nottingham to comply with its previous order requiring him to file corrected and complete financial information using the questionnaire provided, notwithstanding his payment of the filing fee.

In response to this second order, Nottingham filed a “motion to withdraw [the] request to proceed in forma pauperis,” in light of his payment of the filing fee. Nottingham’s- motion also sought the court’s withdrawal of its “request” for compliance with its previous orders, asserting that he had “paid all filing fees and [wa]s no longer required to file any financial statement.”

Magistrate Judge Averitte granted Nottingham’s motion to withdraw the original IFP application, acknowledging that the application “appeared] to have been rendered moot” by Nottingham’s payment of the filing fee. However, the court denied Nottingham’s motion for the withdrawal of the requirement that he comply with its financial disclosure directives, The court held that neither of-the orders requiring Nottingham to complete the questionnaire had been mooted by the payment of the filing fee and that the same concerns that the court had regarding Nottingham’s original IFP application remained. The court explained that litigants are required to comply with court orders and may be sanctioned for failing to do so and directed Nottingham to comply with- its two previous orders “instanter.” Additionally, the title of the order stated, in all capital letters, that it was Nottingham’s “last opportunity to comply with court order,” and the court explicitly warned Nottingham in the body of the order that “a failure to comply may lead to -the imposition of sanctions including the assessment of a monetary sanction and, ultimately, dismissal of this lawsuit.”

Steadfast in his desire to proceed without completing the questionnaire, Nottingham filed instead a “response” to the court’s order expressing confusion as to the financial disclosure obligation. Attached to the response was an affidavit from Nottingham’s wife, Nancy Morrison Nottingham, explaining that the Notting-hams’ financial circumstances had improved between the time of the original IFP application and the paying of the filing fee. According to the affidavit, medical problems had restricted Nancy’s ability to work in mid-2014, but surgery had alleviated the issue to the point that the Not-tinghams were no longer in need of IFP assistance by the end of 2014.

In response, the district court dismissed the complaint without prejudice. In dismissing the case pursuant to Federal Rule of Civil Procedure 41(b), District Judge Robinson noted that Nottingham “has made plain [that] he will npt comply” with the previous orders to complete the questionnaire and that he was warned of the potential consequences for noncompliance.

The day after the dismissal, Nottingham filed a motion for reconsideration. In the motion, Nottingham did not offer to cure his error by .filing .a completed questionnaire. Instead, he argued that he had gone “far and above” in his efforts to comply with .the court’s order and “followed each and every order that was issued,” asserting that Magistrate Judge Averitte had no basis for continuing to require Nottingham to comply with the financial disclosure obligation after he paid the filing fee. The district court denied the motion for reconsideration, and Nottingham timely appealed.

II

Under Rule 41(b), a district court may dismiss an action sua sponte if the plaintiff fails to comply with court orders. We review such dismissals for abuse of discretion. Where, as here, “the dismissal is without prejudice but the applicable statute of limitations probably bars future •litigation,” our examination is searching, and we review the dismissal- as we would a dismissal with prejudice. Although “[l]esser sanctions such as fines or dismissal without prejudice are usually appropriate before dismissing with prejudice, ... a Rule 41(b) dismissal is appropriate where there is ‘a clear record of delay or contumacious conduct by the plaintiff and when lesser sanctions would not serve the best interests of justice,’.”

Read liberally, Nottingham’s brief argues that Magistrate Judge Averitte lácked the authority to reqúire him to complete the questionnaire after he paid the filing fee, excusing his refusal to comply with the court’s orders. Magistrate Judge Averitte required Nottingham’s continued compliance with the financial disclosures order to ensure that the “initial request for pauper- status was proper,” in light of Nottingham’s apparent pattern of filing IFP applications and then paying the filing fee when additional and verifiable detail was requested.' Although we have never addressed the propriety of a district court ordering financial disclosures after a plaintiff withdraws his or her IFP application in favor of paying the filing fee, we conclude that the district court has that authority.

The statute governing IFP status specifies that “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if [it] determines that ■... the allegation of poverty is untrue.” Accordingly, ’ inquiry into whether Nottingham’s allegations of poverty were true was well within the district court’s discretion. Dismissal is mandatory if the court - determines “at any time,” even after the plaintiff pays the filing fee, that the contents of an IFP application are false.- A district court retains the authority to conduct reasonable investigations into the allegation of poverty even after the filing fee payment. Under the statute’s plain language, Nottingham’s eventual payment, did not disrupt the district court’s ability to inquire into whether the initial IFP ■ application contained misrepresentations.

We reject Nottingham’s argument that his noncompliance can be excused on the ground that the district court lacked the authority to require him to complete the questionnaire after he paid the filing fee; The question remains, however, whether the district court abused its discretion by-imposing the ultimate sanction for Nottingham’s refusal to comply with court orders.

The district court had reason to suspect that Nottingham’s IFP application .contained false information, as this is apparently the third time that Nottingham has filed an IFP application, then withdrawn the application after being pressed for additional information. While Nottingham argues on appeal that he has never previously filed for IFP status, the docket sheets in the two previous cases cited by Magisteate Judge . Averitte reflect IFP requests followed by payment of the filing fee, so even if those docket sheets reflect some clerical error or Nottingham filed for IFP relief in those cases only by mistake, Magistrate Judge Averitte had an objective basis for suspecting that Nottingham may have made untrue allegations of poverty and was permitted to inquire about the issue. , , .

As noted above, dismissal was proper only if Nottingham’s noncompliance was the result of “purposeful delay or contuma-ciousness and ... lesser sanctions would not serve the best interests of justice.” Additionally, to dismiss with prejudice, we usually require the presence of an “aggravating factor,” which includes “the extent to which the plaintiff, as distinguished from his counsel, was personally responsible for the delay, the degree of actual prejudice to the defendant, and whether the delay was the result of intentional conduct.”

Nottingham’s conduct demonstrates con-tumaciousness. After the district court twice made clear that it required Nottingham’s compliance with its original order notwithstanding his payment of the filing fee, Nottingham expressed confusion at the directive and noted that he “cannot find any requirement to file any financial statement if he has not asked for any financial assistance.” But the requirement to provide financial information was clearly set forth in two of Magistrate Judge Aver-itte’s orders. A litigant may not flout valid court orders simply because he is not independently certain of their validity.

With respect to lesser sanctions, we have previously made clear that they “include assessments of fines, costs, or damages against the plaintiff, conditional dismissal, dismissal without prejudice, and explicit warnings.” Here, Magistrate Judge Averitte explicitly warned Nottingham that his continued refusal to complete the questionnaire provided “may lead to the imposition of sanctions including the assessment of a monetary sanction and, ultimately, dismissal of this lawsuit.” Despite this explicit warning, Nottingham refused to comply.

Finally, Nottingham is acting pro se and is personally responsible for his failure to comply with the district court’s orders. Additionally, Nottingham’s noncompliance was due to intentional conduct, as he acknowledged understanding Magistrate Judge Avepjtte’s order. In response to the order that included in its caption “LAST OPPORTUNITY TO COMPLY WITH COURT ORDER,” Nottingham stated that he “requests that he be able to proceed without providing any additional financial disclosure, without the threat of dismissal or sanctions.” Even after the district court dismissed the suit, Nottingham’s motion for reconsideration did not provide the financial information that he had been ordered to disclose. Instead, he again challenged the court’s authority to require financial disclosures once he had paid the filing fee. Accordingly, “aggravating factors” are present.

The district court did not abuse its discretion in dismissing this action pursuant to Rule 41(b).

⅜ ⅜ ⅜»

For the reasons set forth herein, the judgment of the. district court is AFFIRMED.

HAYNES, Circuit Judge,

dissenting:

I respectfully dissent. I agree with the majority opinion that the better view of the law is that the magistrate judge had the authority to investigate the truthfulness of the original poverty allegations even after the pro se plaintiff withdrew his IFP application. However, the Seventh Circuit’s decision regarding a related question in Hrobowski v. Commonwealth Edison Co., 203 F.3d 445 (7th Cir. 2000) demonstrates that this is far from an obvious legal proposition to ■ a group of judges, much less to a pro se litigant.

In Hrobowski, the district court initially granted a plaintiffs application to proceed IFP in his discrimination suit and appointed counsel to represent the plaintiff pro bono. Id. at 446. Subsequently, the plaintiff hired and paid for a new attorney when his appointed counsel sought and was granted leave to withdraw (to which the plaintiff did not object). Id. Later in the course of the litigation, the plaintiff filed a second application to proceed IFP and ■ again sought appointment of counsel. Id. at 447. The district court denied the plaintiffs second application and the case proceeded to trial. ■ Id. On the second day of trial, it came to light during cross examination of the plaintiff that his second application for IFP status contained significant omissions. Id. In light of this testimony and upon the defendant’s motion, the district court dismissed the plaintiffs case as a sanction pursuant to 28 U.S.C. § 1915(e)(2)(A). Id.

The Seventh Circuit reversed. Id. at 449. Concluding first that the question presented — “whether [§ 1915(e)(2)(A)] forced the district court to dismiss ... [the plaintiffs] case after the omissions in his in forma pauperis applications came to light” — was a question of law, the court reviewed the district court’s decision de novo. Id. at 448. The court went on to determine that the denial of the plaintiffs second IFP application operated “as a revocation of the initial grant of [IFP] status,” and thus “his obligation to pay filing fees kicked in and he began to proceed (or at least should have been ordered to proceed) like any other plaintiff.” Id. Over the subsequent 11 months, “he expended considerable money and effort ... bringing his case to trial,” in accordance with his non-IFP status. Id. The court concluded that the district court’s dismissal of the case under the code provision entitled “‘proceedings in forma pauperis’ after such a long stretch of [the plaintiff] proceeding as a nonpauper d[id] not make sense.” Id. Thus, the court held that the district court erred in using the mandatory dismissal language of § 1915(e)(2)(A) to dismiss the plaintiffs suit. Id.

Hrobowski does not directly address the question raised by this appeal — whether the district court has the discretion to develop evidence relevant to § 1915(e)(2)(A) when an IFP application is no longer pending. Rather, it addressed a related question — whether a judge has the power to dismiss a case under § 1915(e)(2)(A)’s mandatory dismissal provision when a plaintiff is no longer proceeding IFP (and has not been for some time). Further, unlike the district court in Hrobowski, the district court in this case dismissed Nottingham’s appeal under Federal Rule of Civil Procedure 41(b) — not § 1915(e)(2)(A).

Nonetheless, Hrobowski’& holding could be read to call into question a magistrate judge’s power'to continue to investigate a plaintiffs IFP status even after an IFP application has been withdrawn. Given the uncertainty exhibited by the arguable dissonance between the Seventh Circuit’s holding in Hrobowski and the majority opinion in this case, it is understandable that .Nottingham, a pro se litigant, would not necessarily intuit that the magistrate judge could continue to require the submission of financial disclosures even after the withdrawal of his IFP application. Accordingly, ■ I conclude that Nottingham’s conduct did not evince the “purposeful delay or contumaciousness” necessary for what is effectively a dismissal with prejudice. Long v. Simmons, 77 F.3d 878, 880 (5th Cir. 1996). A plaintiff should not be punished to the point of losing his case for disputing a legal proposition which is not obvious. Id.

Additionally, I disagree that Nottingham was clearly warned of the possibility of immediate dismissal. As the majority opinion shows, the magistrate judge stated only that “a failure to comply may lead to the imposition of sanctions including the assessment of a monetary sanction and, ultimately, dismissal of this lawsuit.” Maj. Op. at 440 (emphasis added). The dismissal was not “ultimately”; it took place immediately.

For these reasons, I dissent. Now that we have made the law clear, instead of affirming, I would give Nottingham another chance by remanding the ease with directions that the district court allow him one more opportunity to respond to the magistrate judge’s order in question within a stated (reasonable) time. If he then fails to comply, his ease should be dismissed.

      . See Fed R. Civ. P,. 41(b); McCullough v. Lynaugh, 835 F.2d 1126, 1126 (5th Cir. 1988) (per curiam).

      . Coleman v. Sweetin, 745 F.3d 756, 766 (5th Cir. 2014) (per curiam).

      . Id. (quoting Boatman v. Econ. Lab., Inc., 537 F.2d 210, 213 (5th Cir. 1976)).

      . Bryson v. United States, 553 F.3d 402, 403 (5th Cir. 2008) (per curiam) (citations omitted) (quoting Callip v. Harris Cty. Child Welfare Dep’t, 757 F.2d 1513, 1521 (5th Cir. 1985)); see also Long v. Simmons, 77 F.3d 878, 880 (5th Cir. 1996) (noting that a district court does not abuse its discretion by dismissing a case with prejudice if the plaintiff has been contumacious and the court has "employed lesser sanctions before dismissing the action”).

      . 28U.S.C, § 1915(e)(2)(A).

      . 28 U.S.C. § 1915(e)(2).

      . See Mathis v. New York Life Ins. Co., 133 F.3d 546, 547 (7th Cir. 1998) (per curiam) ("The Prison Litigation Reform Act (PLRA) redesignated# 1915(d) to § 1915(e) and mandated that a district court ‘shcill dismiss the case’ if among other things ‘the allegation of poverty is untrue.' ”). We also find our decision in Castillo v. Blanco, 330 Fed.Appx. 463, 466 (5th Cir. 2009) (per curiam) (unpublished) (noting mandatory dismissal requirement) persuasive.

      . Compare Order Setting Deadline for Submission of IFP Data Sheet, Nottingham v. Richardson, No. 2:10-CV-60 (N.D. Tex. July 2, 2010), ECF No. 13 with Receipt for $350, Nottingham v. Richardson, No. 2:10-CV-60 (N.D. Tex. July 12, 2010); compare Notice of Deficiency, Nottingham v. Finsterwald, No. 2:10-CV-23 (N.D. Tex. Feb. 19, 2010), ECF No. 8 with Receipt of payment for Filing Fee, Nottingham v. Finsterwald, No. 2:10 CV-23 (N.D. Tex. Mar. 9, 2010).

      . Bryson, 553 F.3d at 403 (quoting Callip, 757 F.2d at 1521).

      . Id. (quoting Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir. 1982)).

      . See Fed. R. Civ. P. 41(b) (authorizing dismissal as sanction for failing to comply with court order); cf. McNeal v. Papasan, 842 F.2d 787, 792 (5th Cir. 1988) (focusing contuma-ciousness inquiry in a dismissal for failure to prosecute on the “stubborn resistance to authority” (internal quotation marks and citation omitted)).

      . Thrasher v. City of Amarillo, 709 F.3d 509, 514 (5th Cir. 2013) (alterations and internal quotation marks omitted).


author: PRISCILLA R. OWEN, Circuit Judge:

text:
    Mark A. COWART, Plaintiff-Appellee, v. ERWIN, SRT Officer, Defendant-Appellant.
    No. 15-10404
    United States Court of Appeals, Fifth Circuit.
    Filed September 13, 2016

      Daron L. Janis, Esq., Taylor Freytag Brinkman, Jason Levi Sanders, Esq., Attorney, Locke Lord, L.L.P., Dallas, TX, for Plaintiff-Appellee.
    Dolena Tutt Westergard, District Attorney’s Office for the County of Dallas, Dallas, TX, for Defendant-Appellant.
    Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.
   PRISCILLA R. OWEN, Circuit Judge:

Former prisoner Mark A. Cowart filed suit against four Dallas County Jail detention officers, including Special Response Team Officer Erwin, pursuant to 42 U.S.C. § 1983 and state law, claiming that the officers beat him without, justification. After the officers unsuccessfully argued that Cowart failed to exhaust administrative remedies as required by the Prison Litigation Reform Act (PLRA), a jury trial ensued. The jury found Erwin liable as to all claims, awarding both compensatory and punitive damages. On appeal, Erwin assails the district court’s ruling on her PLRA defense as well as its denial of her post-verdict motions. Wé affirm.

I

Cowart originally filed suit against the Dallas County Jail, Officer Erwin and various John Doe officers. After the district court dismissed the John Doe defendants and the Jail, we vacated the dismissal to permit discovery regarding the identity of other involved officers. Cowart ultimately proceeded against Erwin and three other detention officers — Officers Garrett, Weeks, and Holt — and asserted claims for excessive force and bystander liability under § 1983, as well as assault under state law. The officers moved for summary judgment, arguing in relevant part that Cowart failed to comply with the PLRA’s exhaustion requirement and that Cowart’s claims were barred by qualified and official immunity. After the district court denied the motion, a magistrate judge held an eviden-tiary hearing to resolve factual disputes underlying the officers’ PLRA defense.

At the hearing, Cowart testified that he handed a grievance form to an officer at the jail on April 22, 2009, just eight days after Cowart’s altercation with the officers. Cowart did not receive a response from the jail’s Grievance Board, however, prior to his May 21, 2009 transfer to the custody of the Texas Department of Criminal Justice. A grievance officer testified that no response, either interim or final, was issued because the Board never received a grievance from Cowart. •

Crediting Cowart’s testimony, the magistrate judge concluded that Cowart satisfied the PLRA’s exhaustion requirement by handing his grievance to a jail staff member. He determined that the PLRA required nothing further, as the jail’s grievance procedures became unavailable to Cowart when he was transferred from the jail’s jurisdiction. The district court adopted the magistrate’s findings and conclusions and the suit proceeded to trial.

At trial, the jury heard sharply divergent testimony regarding the altercation between Cowart and the detention officers. All parties agree that on April 14, 2009, several detention officers conducted a “shakedown” of the tank in which Cowart was housed. The officers ordered the inmates to line up against the wall and assume a submissive position — on their knees, hands behind their heads, and elbows touching the wall.

Cowart testified that he became uncomfortable in the position and asked to stand, but was denied permission to do so. He admitted that he stood up anyway, but was forced back to his knees by two officers— Garrett and - Weeks — amidst the officers’ racial epithets. Cowart- admitted that he “mouthed off’ in kind. .

According to Cowart, the interaction escalated quickly from there, and we consider the evidence in the light most favorable to him, as the prevailing party. Presumably in reaction to Cowart’s verbal responses, Erwin walked in front of Cowart, who was on his knees and held in position by Garrett and Weeks, and punched him twice in the face. Immediately after, a “swarm” of officers took Cowart to the ground and began beating him; officers kicked, punched, and stomped upon Co-wart, and sprayed him with mace. At some point, Cowart temporarily lost consciousness. Eventually, the officers' attempted to lift Cowart to his feet exclusively by his arms — now handcuffed behind him — causing Cowart great pain. In response to his protests, Cowárt was sprayed again with mace by Officer Holt and dropped on his face. Cowart was subsequently removed from the tank and escorted to the nurses’ station by multiple officers, including Erwin. En route, an unidentified officer slammed Cowart’s head into the elevator wall. At -no point did Cowart physically threaten the officers or fight back.

Cowart’s testimony was largely corroborated by five inmate -witnesses. Each recalled that multiple officers attacked Co-wart and that Cowart was not resisting. However, while each inmate could identify Erwin, or an officer matching Erwin’s description, none could identify Erwin’s co-defendants as participants.

Testifying- officers presented a different story. Erwin testified that she took Cowart down to the ground when he “came off the wall” and cursed at the officers. She denied punching Cowart. Other officers had difficulty recalling the events, but each testified that no officer punched, kicked, stomped upon, or otherwise used unreasonable force against Cowart. Multiple officers claimed Cowart was resisting and only minimal force was used to subdue him. An incident report completed by Erwin described Cowart as “belligerent” and reported that he was taken down with “minimal force.”

Despite the conflicting testimony, it is undisputed that Cowart was transported to Parkland Hospital later that evening. There, an emergency room physician diagnosed Cowart with contusions of the face, scalp, and neck, a neck sprain, and a ruptured eardrum, and noted that Coward had tenderness and swelling on his right hand. At trial, the physician testified that such injuries were consistent with severe trauma. Cowart testified that he still experiences a ringing in his ear and has difficulty gripping objects due to nerve damage in one hand, which limits his employment options.

The jury returned a verdict finding Erwin alone liable on all claims and awarded Cowart $10,000 in compensatory damages and $4,000 in punitive damages. The district court entered judgment on the verdict, denying Erwin’s renewed post-verdict motion for judgment as a matter of law or a new trial. Erwin timely appealed.

On appeal, Erwin challenges the district court’s determination that Cowart complied with the PLRA’s exhaustion requirement, as well as the district court’s denial of her post-verdict motion for judgment as a matter of law and for new trial.

II

We review the district court’s legal rulings regarding exhaustion of administrative remedies de novo and its factual findings for clear error.

We review the district court’s denial of a motion for judgment as a matter of law de novo, “applying the same standard as the district court.” When a case is tried to a jury, a motion for judgment as a matter of law “is a challenge to the legal sufficiency of the evidence supporting the jury’s verdict.” “In resolving such challenges, we draw all reasonable inferences and resolve all credibility determinations in the light most favorable to the nonmov-ing party,” and will uphold the verdict “unless there is no legally sufficient evi-dentiary basis for a reasonable jury to find as the jury did.”

Finally, we “review a district court’s denial of a motion for a new trial for abuse of discretion.” But when the district court has denied a new trial motion, “[o]ur review is particularly limited” and “we must affirm the verdict unless the evidence — viewed in the light most favorable to the jury’s verdict — points so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary [conclusion].”

III

We first address Erwin’s threshold argument that Cowart failed to exhaust administrative remedies. The PLRA requires prisoners to exhaust “such administrative remedies as are available” prior to filing a § 1983 action regarding prison conditions; The prison’s grievance procedures, and not the PLRA, define the remedies that are available and must thus be exhausted. “This circuit has taken a ‘strict’ approach to § 1997e’s exhaustion requirement, under which prisoners must not just substantially comply with the prison’s grievance procedures, but instead must ‘exhaust available remedies properly’ Because “exhaustion is an affirmative defense, the burden is on [Erwin] to demonstrate that [Cowart] failed to exhaust available administrative remedies.”

It is undisputed that the Dallas County jail provides a two-step grievance procedure: First, a prisoner must submit a written grievance to any staff member at the jail (Step 1); second, a prisoner must appeal an adverse decision to the Detention Service Manager (Step 2). According to the jail’s inmate handbook, the Grievance Board, upon receiving a grievance, “sends a[n] interim reply to the inmate showing grievance receipt, and the grievance criteria the grievance is judged on.” The Board sends the interim reply to the prisoner within 15 days of receipt; an answer within 60 days.

Erwin does not contest the magistrate’s factual finding that Cowart submitted a Step 1 grievance to a, jail staffer. She further acknowledges that the parties previously stipulated that Step 2 of the process was not at issue, given Cowart’s transfer to TDCJ custody prior to the lapse of the Board’s 60-day response period.

Erwin contends that Cowart was required to appeal, or take some other action, when he failed to receive a timely interim response from the Board. Erwin asserts that' Cowart was familiar with the grievance process and acknowledged that he “should have known” something had gone amiss when he did not receive a timely interim reply. Based on this argument and according to Erwin’s timeline, Cowart had two weeks prior to his transfer to rectify the improper processing or non-receipt of his grievance. While we question Erwin’s timeline, which assumes both that a jail staffer immediately delivered the Cowart’s grievance and that the grievance was filed that same day, it is irrelevant to our holding,

Erwin primarily relies on this court’s opinion in Wilson v. Epps. In Wilson, we held that when a prison fails to respond timely “at some preliminary step in the grievance process,” a prisoner is “entitle[d]” to “move on to the next step.” We explained "that “it is only if the prison fails to respond at the last step of the grievance process that the prisoner becomes entitled to'sue, because then there is no next step (save filing a lawsuit) to which the prisoner can advance.” We held in that case that Wilson failed to exhaust available remedies when he did not continue on to the next available step after the prison’s response period on a preliminary step had lapsed.

The grievance policies of the Dallas County Jail indicate that Wilson does not apply on the facts before us. The jail’s Grievance Plan provides that “[i]f an inmate is not satisfied with a Board’s findings, the inmate may appeal to the Detention Service Manager, Quality Assurance Unit.” The Plan further indicates that the “Board’s findings” ave delivered to an inmate in a “written reply ... within 60 days of the initial grievance receipt.” An interim response does not contain “findings” that a prisoner may appeal. Nor does any other provision in the plan permit an inmate to appeal the lack of a timely interim reply. Here, unlike in Wilson, the policies afforded Cowart no “next step” once the response period for an interim reply had lapsed, but pending his receipt of a written answer with findings.

Essentially, Erwin reads an additional requirement into the policies — one requiring prisoners to object in some way if they do not receive a timely interim reply. However, “[ejxhaustion is defined by the prison’s grievance procedures, and courts neither may add to nor subtract from them.” The district court did not abuse its discretion in concluding that Cowart complied with the PLRA’s exhaustion requirement.

IY

Erwin contends that insufficient evidence supports the jury’s verdict on his § 1983 claims for excessive force and bystander liability, the jury’s- finding that Erwin was not entitled to official immunity under state law, and the jury’s award of compensatory and punitive-damages. She further argues that the district court erred by denying Erwin qualified immunity against Cowart’s § 1983 claims and by denying a requested jury instruction pertinent to Cowart’s claim for assault. Finally, Erwin challenges the district court’s denial of her motion for new trial.

A

In evaluating excessive force claims under the Eighth Amendment, the “core judicial inquiry” is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Though “[t]he focus of this standard is on the detention facility official’s subjective intent to punish,” intent is determined by reference to the well-known ■ Hudson factors— “the extent of injury suffered, the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any.efforts made to temper the severity of a forceful response.” The amount of force used must be more than de minimis, “provided that the use of force is not of a sort ‘repugnant to the conscience of mankind.’ ” A plaintiff need not show significant injury, although the extent of the injury may supply insight as to the amount of force applied.

Erwin concedes the evidence supports a finding that she punched Cowart twice in the face but claims the record supports nothing more. She further avers that the punches did not involve the level of force required for an Eighth Amendment violation.

Erwin’s position is that the “objective evidence” offered at trial, which included photographs, medical records, and testimony from medical professionals, cannot be contradicted by Cowart’s or other witnesses’ testimony. Erwin’s “objective evidence” argument is derived from her misplaced reliance on two opinions in which this court considered objective evidence— in both cases, a videotape — to determine whether factual disputes existed at the summary judgment stage. Those cases are factually inapposite. In the-present case, the objective evidence is not necessarily inconsistent ■ with eye witness accounts of what transpired at the jail on the day in question. There were material factual disputes to be resolved by a fact-finder, and we apply the long-standing principle of deference afforded to verdicts rendered by a jury. We “review all of the evidence from the record, draw all reasonable inferences in favor of the nonmoving party, and may not make credibility determinations or weigh the evidence.”

The evidence in this case supports the jury’s verdict finding Erwin liable for excessive force. We note that the questions put to the jury did not differentiate between Erwin’s punches and the subsequent melee; the jury was simply asked whether the officers used excessive force. Accordingly, in reviewing the verdict, we consider whether the jury, could have found that Erwin used excessiye force by punching Cowart, by beating him further alongside other officers, or both.

As Erwin admits, a reasonable jury could find that she punched Cowart twice in the face. The record contravenes Erwin’s characterization of the punches as a mere “malevolent touch” that involved only de minimis force. Though an excessive force plaintiff need .not show significant injury, the extent of injury may supply insight as to the force applied. Photographs of Cowart’s injuries reveal bruising on Cowart’s face and ear; hospital records report contusions to his face, as well as a ruptured ear drum; and the emergency room physician testified that “clearly repeated blows [to the head] could give you these sorts of findings, as well as could a single blow.” The jury was entitled to tie these injuries to Erwin’s punches and conclude that the injuries were indicative of excessive force. We reject Erwin’s implication that the confused nature of the attack erodes a causal connection between her conduct and Cowart’s injuries so as to insulate her from liability.

Regardless, the jury was entitled to find an excessive force violation based on other Hudson factors, namely, the use of force despite the lack of a perceived threat or need for force. There was evidence that Cowart was restrained and nonthreatening when Erwin punched him. This version of events, which we must accept at this stage, supports a finding of excessive force — “courts have frequently found constitutional violations in cases where a restrained or subdued person is subjected to the use of force.” It is notable that even Erwin testified that, assuming she had punched him, such force would be excessive.

Erwin suggests that no testimony tied her to the beating that followed her punches. However, Cowart and multiple inmate witnesses testified that Erwin participated in the fray. The testimony established that Cowart was restrained, if not incapacitated, during this portion of the assault. Drawing all inferences in Cowart’s favor, as we must, sufficient evidence supports the jury’s finding that Erwin used unjustified force on Cowart beyond her two initial punches.

Erwin nevertheless claims that she is entitled to qualified immunity. Qualified immunity shelters state officials from liability only “to the extent that the officials’ actions do not violate clearly established statutory or constitutional rights.” “A public official is entitled to qualified immunity unless the plaintiff demonstrates that (1) the defendant violated the plaintiffs constitutional rights and (2) the defendant’s actions were objectively unreasonable in light of clearly established law at the time of the violation.” In defining clearly established law, we must avoid a high level of generality and instead consider “whether the violative nature of particular conduct is clearly established.”

We have little difficulty concluding that in 2009, the time of the incident, it was well-established, in sufficiently similar situations, that officers may not “use gratuitous force against a prisoner who has already been subdued ... [or] incapacitated.” Reasonable officers had fair notice that such conduct under the circumstances violated Cowart’s right to be free from excessive force.

We do not address Erwin’s challenges to the jury’s findings of § 1983 bystander liability or assault under state law, as Erwin’s liability for excessive force is alone sufficient to uphold the verdict. ■

B.

Erwin challenges the jury’s award of damages. Erwin first argues that the $10,000 in compensatory damages is unsupported by the evidence. The jury was instructed to consider damages for physical pain and mental anguish, physical impairment, and loss of earning capacity. When a damage award includes recovery for pain and suffering, which are “to a large degree, not susceptible to monetary quantification,” the jury “has especially broad leeway.”

We are satisfied that the award of $10,000 in compensatory damages falls within the range of permissible awards supported by the evidence in this case. Cowart testified that he “was in so much pain and blood [was] everywhere,” that his arms and hands were “completely numb,” that he heard a “constant ringing” in his left ear, and that he was screaming from the pain. The inmate witnesses corroborated Cowart’s report of pain and suffering at the scene. Photographs taken after the altercation show redness and injury to Co-wart’s face, ear, neck, and back. Medical records and testimony further support Co-wart’s account of his injuries and pain. A triage nurse observed bruising and redness on Cowart’s face and neck and noted that Cowart was complaining of throbbing in his left eye and ear and his right hand, as well as diminished hearing. The treating physician diagnosed Cowart with, a perforated ear drum, a neck sprain, multiple contusions, and swelling and tenderness on his right hand. When asked, the physician confirmed that Cowart’s diagnoses are consistent with severe trauma. Compensatory damages in the amount of $10,000 is not “entirely disproportionate to the injury sustained.”

Erwin next asks this court to exercise its “discretionary moral judgment” and set aside the jury’s award of $4,000 in . punitive damages. She contends the award must be seP aside because she lacked the requisite mental state and because the damages serve no deterrent value since Erwin no longer works in law enforcement. Erwin does, not challenge the quantum of punitive damages, only the fact of their imposition.

A jury may award punitive damages in a § 1983 action when an official’s conduct is “ ‘motivated by'evil intent’ or demonstrates ‘reckless or callous, indifference’ . to a person’s constitutional rights.” As Cowart correctly notes, the jury’s verdict on Cowart’s excessive force claim- — premised on a finding .of malicious intenfi-r-permitted the jury to impose punitive damages. Additionally, Erwin fails to realize that punitive damages are aimed not only at her, but also to “deter h[er] and others like h[er] from similar conduct in the future.” Finally, the “discretionary moral judgment” of whether to award punitive damages when the legal threshold is met belongs to the jury, not this court.

C

We finally turn to the district court’s denial of Erwin’s motion for new trial. Erwin contends that a new trial is warranted because (1) the testifying inmate witnesses likely-conspired en route to the trial to produce corroborating testimony, (2) the jury was confused about damages, and (3) there is “no legally principled basis” for finding Erwin alone liable.

The record does not support Erwin’s claim that the inmate witnesses fabricated a joint tale. The inmate witnesses were no more consistent in their accounts of the events than the testifying officers. Moreover, Erwin asked each inmate if they had conversed during cross-examination. Apparently the jury did not find the contrived-testimony theory convincing, and we do not “reweigh the evidence or assess the credibility of witnesses.”

Erwin argues that the jury was confused by a particular interrogatory and read it to require a damages award. The jury sent a question to the district court during deliberations indicating that the jury was confused by a specific interrogatory and “d[id] not want to consider damages for the defendants.” We agree with the district court that a fair reading of the record indicates that the jury initially interpreted the interrogatory to permit damages in favor of the defendants, as opposed to Cowart. However, the district court’s responses advised the jury that if it reached the issue of damages, damages could only be. awarded to Cowart. The responses provided to the jury do not evince a mandatory damages instruction, as Erwin suggests.

Erwin maintains that she should not have been found solely liable because trial testimony indicated that multiple officers attacked Cowart.. It is of course no defense to Erwin’s liability that a jury did not find her co-defendants liable by a preponderance of the evidence. As both Co-wart and the district court noted and our review of the record confirms, the jury’s findings as to Erwin’s co-defendants can be attributed to the inmate witnesses’ repeated identification of Erwin and her actions in contrast to their inability to identify Erwin’s male co-defendants.

In sum, the result in this case does not reflect a miscarriage of justice and the district court acted within its discretion in denying Erwin’s new trial motion.

* * *

The judgment of the district court is AFFIRMED.

      . Cowart v. Dall. Cty. Jail, 439 Fed.Appx. 332, 332-33 (5th Cir. 2011) (per curiam).

        . See, e.g., King v. McCarty, 781 F.3d 889, 895 (7th Cir. 2015) (holding that a county jail’s administrative remedies became unavailable after an inmate was transferred beyond the county jail’s, jurisdiction); Johnston v. Maha, 460 Fed.Appx. 11, 15 (2d Cir. 2012) (same); Rodriguez v. Westchester Cty. Jail Corr. Dep't, 372 F.3d 485, 488 (2d Cir. 2004) (same).

      . Dillon v. Rogers, 596 F.3d 260, 273 (5th Cir. 2010).

      . Heck v. Triche, 775 F.3d 265, 272 (5th Cir. 2014) (quoting Foradori v. Harris, 523 F.3d 477, 485 (5th Cir. 2008)).

      . Id. (quoting Hiltgen v. Sumrall, 47 F.3d 695, 699 (5th Cir. 1995)).

      . Id. at 273 (quoting Foradori, 523 F.3d at 485); see also Fed. R. Civ. P. 50(a).

      . Alaniz v. Zamora-Quezada, 591 F.3d 761, 770 (5th Cir. 2009)

      . Id. (alterations in original).

      . 42 U.S.C. § 1997e(a) ("No action shall be brought with respect to prison conditions, under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”); see also Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) ("There is no question that exhaustion is mandatory under the PLRA and that unex-hausted claims cannot be brought in court.”).

      . Wilson v. Epps, 776 F.3d 296, 299 (5th Cir. 2015) (citing Jones, 549 U.S. at 218, 127 S.Ct. 910).

      . Id. at 299-300 (5th Cir. 2015) (emphasis in . original) (quoting Dillon v. Rogers, 596 F.3d 260, 268 (5th Cir. 2010)).

      . Dillon, 596 F.3d at 266 (citing Jones, 549 U.S. at 216, 127 S.Ct. 910).

      . See King v. McCarty, 781 F.3d 889, 895 (7th Cir. 2015) (holding that a county jail’s administrative remedies became unavailable after an inmate was transferred beyond the county jail’s jurisdiction); Johnston v. Maha, 460 Fed.Appx. 11, 15 (2d Cir. 2012) (same); Rodriguez v. Westchester Cty. Jail Corr. Dep’t, 372 F.3d 485, 488 (2d Cir. 2004) (same).

      . 776 F.3d 296 (5th Cir. 2015).

      . Id. at 301.

      . Id. (emphasis in original).

      . Id. at 302,

      . The inmate handbook similarly provides “If you disagree with the Board’s findings, you may appeal to the Chief Deputy, Office of Inmate Housing.”

      . Cantwell v. Sterling, 788 F.3d 507, 509 (5th Cir. 2015) (emphasis added).

      . Hudson v. McMillian, 503 U.S. 1, 6-7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992).

      . Valencia v. Wiggins, 981 F.2d 1440, 1449 (5th Cir. 1993).

      . Kitchen v. Dall. Cty., 759 F.3d 468, 477 (5th Cir. 2014) (internal quotation marks omitted) (quoting Hudson, 503 U.S. at 7, 112 S.Ct. 995); see also Valencia, 981 F.2d at 1449.

      . Hudson, 503 U.S. at 9-10, 112 S.Ct. 995 (quoting Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)).

      . See Wilkins v. Gaddy, 559 U.S. 34, 37-39 & n.2, 130 S.Ct. 1175, 175 L.Ed.2d 995 (2010) ("Injury and force, however, are only imperfectly correlated, and it is the latter that ultimately counts.”).

        . Schneider v. Kaelin, 569 Fed.Appx. 277, 279-80 (5th Cir. 2014) (per curiam); Carnaby v. City of Hous., 636 F.3d 183, 187 (5th Cir. 2011).

      . E. Tex. Med. Ctr. Reg'l Healthcare Sys. v. Lexington Ins. Co., 575 F.3d 520, 525 (5th Cir. 2009).

      . See Wilkins v. Gaddy, 559 U.S. 34, 37-39 & n.2, 130 S.Ct. 1175, 175 L.Ed.2d 995 (2010).

      . Kitchen v. Dall. Cty., 759 F,3d 468, 479 (5th Cir. 2014).

      . Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015) (internal quotation marks omitted).

      . Waganfeald v. Gusman, 674 F.3d 475, 483 (5th Cir. 2012).

      . Mullenix v. Luna, — U.S. —, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)).

        . Skrtich v. Thornton, 280 F.3d 1295, 1303 (11th Cir. 2002); see also Kitchen v. Dall. Cty., 759 F.3d 468, 479 & n.27 (5th Cir. 2014) (citing pre-2009 cases holding that the use of force against a nonresisting inmate violates the Eighth Amendment); Brown v. Lippard, 472 F.3d 384, 386-87 (5th Cir. 2006); Gomez v. Chandler, 163 F.3d 921, 922, 924-25 (5th Cir. 1999).

      . See Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed,2d 272 (2001).

      . Seidman v. Am. Airlines, Inc., 923 F.2d 1134, 1141 (5th Cir. 1991) (internal quotation marks omitted).

      . Eiland v. Westinghouse Elec. Corp., 58 F.3d 176, 183 (5th Cir. 1995) (internal quotation marks omitted).

      . Sockwell v. Phelps, 20 F.3d 187, 192 (5th Cir. 1994) (quoting Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983)).

      . See Smith, 461 U.S. at 51-55, 103 S.Ct. 1625; see also Cooper v. Morales, 535 Fed.Appx. 425, 432 (5th Cir. 2013) (per curiam) (citing Jones v. Conner, 233 F.3d 574, at *1 (5th Cir. 2000) (per curiam) (unpublished)).

      . Smith, 461 U.S. at 55, 103 S.Ct, 1625 (quoting Restatement (Second) of Torts § 908(1) (1977) (emphasis added)).

      . Id,

      . United States v. Owens, 683 F.3d 93, 101 (5th Cir. 2012),


author: EDWARD C. PRADO, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jose Alfredo MAGANA, Jr., Defendant-Appellant.
    No. 15-50986
    United States Court of Appeals, Fifth Circuit.
    FILED September 13, 2016

      Joseph H. Gay, Jr., Assistant U.S. Attorney, Nikhil Bhagat, U.S. Attorney’s Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
    Laura G. Greenberg, Assistant Federal Public Defender, Maureen Scott Franco, Federal Public Defender, Federal Public Defender’s Office, Western District of Texas, San Antonio, TX, for Defendant-Appellant.
    Before JONES, DENNIS, and PRADO, Circuit Judges.
   EDWARD C. PRADO, Circuit Judge:

Defendant-Appellant Jose A. Magana, Jr. appeals his sentence, arguing the district court committed reversible plain error by subjecting him to a term of intermittent confinement as a mandatory condition of his supervised release. Because Magana has not demonstrated that his appeal is ripe for review, we DISMISS for lack of jurisdiction.

I. BACKGROUND

Magana pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to a within-Guidelines range of 84 months of imprisonment and a three-year term of supervised release. The district court at sentencing announced that Magana’s term of supervised release included “the special condition that [he] submit to up to one year of intermittent confinement at the direction of the Court pursuant to law.” See 18 U.S.C. § 3563(b)(10). Magana objected to the substantive reasonableness of his sentence but did not object to the conditions of his supervised release. This appeal followed.

II. DISCUSSION

Under 18 U.S.C. § 3583(d), a district court may order) as a “condition of supervised release, ... any condition set forth as a discretionary condition of probation in [18 U.S.C. § 3563(b) ].” One such discretionary condition is a term of intermittent confinement pursuant to § 3563(b)(10), which requires a defendant to “remain in the custody of the Bureau of Prisons [ (“BOP”) ] during nights, weekends, or other intervals of time, totaling no more than the lesser of one year or the term of imprisonment authorized for the offense, during the first year of the term of probation or supervised release.” 18 U.S.C. § 3563(b)(10). However, a term of intermittent confinement “may be ‘imposed only for a violation of a condition of supervised release in accordance with [the rules governing the modification or revocation of supervised release] and only when facilities are available.’” United States v. Arciniega-Rodriguez, 581 Fed.Appx. 419, 420 (5th Cir. 2014) (per curiam) (alteration in original) (quoting 18 U.S.C. § 3583(d)(3)); see also U.S.S.G. § 5F1.8.

Magana argues that the district court committed reversible plain error because it “ordered that the first year of Magana’s supervised release be served in some form of ‘intermittent confinement’ ” even if no “supervised-release violation was alleged and adjudicated” as required under § 3583(d)(3). The Government counters that Magana’s appeal is not ripe for review because, contrary to Magana’s assertions, any term of intermittent confinement is in fact contingent upon “a future allegation that [Magana] committed a violation of supervised release during the first year of his term” of supervised release.

Because Magana did not object at sentencing to the conditions of his supervised release, plain error review would apply to the substantive merits of his challenge to those conditions on appeal. United States v. Scott, 821 F.3d 562, 570 (5th Cir. 2016). However, “[r]ipeness is a component of subject matter jurisdiction, because a court has no power to decide disputes that are not yet justiciable.” Lopez v. City of Houston, 617 F.3d 336, 341 (5th Cir. 2010). Accordingly, whether Magana’s claim is ripe is a jurisdictional issue we review de novo. See United States v. Isgar, 739 F.3d 829, 838 (5th Cir. 2014).

“[T]he ripeness inquiry focuses on whether an injury that has not yet occurred is sufficiently likely to happen to justify judicial intervention.” Pearson v. Holder, 624 F.3d 682, 684 (5th Cir. 2010) (alteration in original) (quoting Chevron U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138, 1153 (5th Cir. 1993)). “A claim is not ripe for review if ‘it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.’” United States v. Carmichael, 343 F.3d 756, 761 (5th Cir. 2003) (quoting Texas v. United States, 523 U.S, 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998)).

Our case law has distinguished between ripe and unripe challenges to special conditions of supervised release where, as here, a defendant has not yet begun his or her term of supervised release. If the strictures of a condition are patently mandatory — i.e., their imposition is “not contingent on future events” — then a defendant’s challenge to that condition is ripe for review on appeal. Id.-, see also, e.g., United States v. Paul, 274 F.3d 155, 164-66 (5th Cir. 2001) (reviewing a challenge to the legality of a special condition “requiring [the defendant] to avoid contact” with minors). An appeal, however, is not ripe if it is “a matter of conjecture” whether the requirements of the condition will take effect. Carmichael, 343 F.3d at 761-62; see also, e.g., United States v. Ellis, 720 F.3d 220, 227 (5th Cir. 2013) (per -curiam) (holding a challenge to a special'condition that included “the possibility” that the defendant “might be required to submit to psychotropic medication and psycho-physiological testing” was “not ripe for review”).

Our decision in Carmichael is instructive. In that case, the district court imposed a “mandatory condition of supervised release” that “required that ... the probation officer be allowed to collect DNA” from the defendants pursuant to the DNA Analysis Backlog Elimination Act of 2000. Carmichael, 343 F.3d at 757, 759. We held that the defendants’ constitutional challenge to this special condition was not ripe because the defendants would only “be required to submit to sampling during supervised release” if the BOP “fail[ed] to execute its statutorily-imposed duty to collect the sample” while they were imprisoned. Id. at 761. As we explained, “the possibility of DNA sampling during supervised release [was] speculative” given that it would require the BOP to “flout[ ] multiple layers of legal obligations placed upon it.” Id.

Here, we hold that Magana’s appeal is not ripe for review because the record does not support his argument that he will automatically be subject to a term of intermittent confinement upon release. Rather, as the district court pronounced at sentencing, Magana would “submit” to a term of intermittent confinement only “at the direction of the Court pursuant to law.” The law, however, includes the aforementioned limitation, 18 U.S.C. § 3583(d), that any term of intermittent confinement be “imposed only for a violation of a condition of supervised release.” Section 3583(d) also incorporates the requirements of 18 U.S.C. § 3583(e)(2), which provide that any modification of the terms; of supervised .release comply with the Federal Rules of Criminal Procedure. 18 U.S.C. § 3583(d), (e)(2). Thus, Magana’s challenge is not ripe for review because it is -based upon speculation that the district court, or the BOP, will disregard the “legal obligations placed upon it.” Carmichael, 343 F.3d at 761.

Further, we have previously rejected the argument that the district court erred by imposing “a term of intermittent confinement as a ‘self-effectuating condition” of a defendant’s supervised release. Arciniega-Rodriguez, 581 Fed.Appx. at 420; accord United States v. Figueroa-Munoz, 592 Fed.Appx. 336, 336 (5th Cir. 2015) (per curiam). In these cases, we held that “[t]he possibility that the [BOP] will misinterpret” a district court’s sentence “as requiring [the defendant] to serve a term of intermittent confinement immediately upon beginning his term of supervised release is entirely speculative and remote.” Arciniega-Rodriguez, 581 Fed.Appx. at 420-21; accord Figueroa-Munoz, 592 Fed.Appx. at 337. This reasoning applies with equal force in this case, as Magana’s argument relies on the unfounded premise that the district court, or the BOP, will act unlawfully in the future.

III. CONCLUSION

Accordingly, because Magana’s appeal is not yet ripe for review, we DISMISS for lack of jurisdiction.

      . In his reply brief, Magana argues that the imposition of intermittent confinement is not contingent on future events because the "written judgment states that Magana will be intermittently confined during the first year of his supervised release.” To the extent Magana argues that the district court’s written statement varied from its oral pronouncement regarding his conditions for supervised release, this argument is waived because it was raised for the first time in his reply brief. See United States v. Heacock, 31 F.3d 249, 259 n.18 (5th Cir. 1994). Moreover, we disagree with his reading of the written judgment. The written judgment tracks the district court’s oral statement by providing that Magana would be subject to intermittent confinement “as directed by the Court.” While the written judgment does not include the qualifier “pursuant to law” that the district court included orally at sentencing, this difference in phrasing is immaterial. District courts are “presumed to know the law and to apply it in making their decisions.” Walton v. Arizona, 497 U.S. 639, 653, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

      . Arciniega-Rodriguez cited to our decision in United States v. Hatton, 539 Fed.Appx. 639 (5th Cir. 2013) (per curiam), which, in turn, relied upon Carmichael. See Hatton, 539 Fed.Appx. at 639.