Brewer v. Mullin, (10th Cir. 2005)

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UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

DANNY DEWAYNE BREWER,

Plaintiff - Appellant,

v.

MIKE MULLIN, Warden; MELINDA

GUILFOYLE, Director's Designee;

KAREN KNOX, BRAD MATTIODA,

LEROY HARRIS, Correctional

Officers,

Defendants - Appellees,

and

FREDDY COOK; JODY DOZIER,

Correctional Officers,

Defendants.

No. 04-7047

(D.C. No. 02-CV-617-S)

(E.D. Okla.)

ORDER AND JUDGMENT(*)

Before HENRY, BRISCOE, and

MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Danny Brewer, a prisoner proceeding pro se, appeals the district court's

dismissal of his 42 U.S.C. 1983 action for lack of exhaustion of administrative

remedies. We have jurisdiction under 28 U.S.C. 1291, and we affirm.

Mr. Brewer's complaint includes three claims: (1) that in February 2001,

guards removed him from his cell with excessive force and beat him; (2) that he

was denied access to the prison's law library; and (3) that prison officials were

deliberately indifferent to his safety. The district court found that Mr. Brewer

had not timely and completely exhausted his administrative remedies with regard

to any of his claims, granted defendants' motion for summary judgment on the

issue of exhaustion, and dismissed the complaint as frivolous. We review the

district court's decision regarding exhaustion de novo. See Jernigan v. Stuchell,

304 F.3d 1030, 1032 (10th Cir. 2002); see also McBride v. Deer, 240 F.3d 1287,

1289 (10th Cir. 2001) (holding that a § 1915(e)(2)(B) dismissal is reviewed de

novo).

The Prison Litigation Reform Act (PLRA) requires timely and complete

exhaustion of administrative remedies prior to filing a § 1983 claim concerning

prison conditions. 42 U.S.C. 1997e(a); Booth v. Churner, 532 U.S.

731, 741

(2001); Jernigan, 304 F.3d at 1032. Under the applicable policy, Oklahoma

inmates like Mr. Brewer must engage in a three-step process to exhaust their

administrative remedies: an informal attempt at resolution at the unit staff level,

submission of a grievance to the reviewing authority, and appeal of an adverse

determination to the Oklahoma Department of Corrections (ODOC). R. Doc. 19,

Attach. F, at 4-10. Our review of the record satisfies us that Mr. Brewer did not

properly complete all of these steps for any of his claims.

With regard to Mr. Brewer's excessive force and deliberate indifference

claims, the record indicates that Mr. Brewer attempted to bypass the normal

grievance procedures by filing "emergency" grievances or by skipping steps in the

procedure. Prison officials refused to accept the grievances outside of the normal

procedure and directed Mr. Brewer to resubmit his grievance in accordance with

policy, but he did not do so. With regard to the denial of access claim, the record

indicates that Mr. Brewer failed to pursue the grievance procedure to its

conclusion by appealing to ODOC.

Mr. Brewer argues on appeal that he exhausted his remedies by presenting

his issues to the warden and ODOC. Simply presenting a defective or non-complying grievance,

however, does not constitute exhaustion of remedies. "An

inmate who begins the grievance process but does not complete it is barred from

pursuing a § 1983 claim under PLRA for failure to exhaust his administrative

remedies." Jernigan, 304 F.3d at 1032. "[W]e reject [plaintiff's] assertion that

inmates do not have to properly complete the grievance process, and they do not

have to correct deficiencies." Id. (quotation and alteration omitted;

emphasis in

original). Mr. Brewer may believe that prison officials erred in deciding his

issues were not emergencies, but that does not mean that he can simply ignore

their determination and opt out of the grievance procedure.

Mr. Brewer also argues on appeal that prison officials ignored his

grievances or intercepted them so that they were never filed. Having reviewed his

arguments and the record, however, we are not persuaded that prison officials or

ODOC impermissibly impeded Mr. Brewer from availing himself of the grievance

process or otherwise prevented him from exhausting his administrative remedies

with regard to these claims.

Mr. Brewer's motion for leave to proceed on appeal without prepayment of

costs or fees is GRANTED, and he is reminded that he is obligated to continue

making partial payments until the entire appellate filing fee has been paid. The

judgment of the district court is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Robert H. Henry

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order and judgment is not binding

precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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