Jones v. Barry, (10th Cir. 2005)

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UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MACEO JONES,

Plaintiff-Appellant

v.

MARION S. BARRY, Mayor;

MARGARET MOORE, Director,

District of Columbia Department of

Corrections; DOCTOR GRANT,

President, Corrections Corporation of

America; WILLIS GIBSON, Warden,

Corrections Corporation of America;

ROB ADAM, Chief of Security;

DARREN SWENSON, Chief of

Security; T. ROBINSON, Captain

Shift Supervisor; DENISE YOUNG,

Classification Supervisor; DENISE

KING, Program Classification

Supervisor; JAY WARDEN OF

PROGRAMS OF CCA; JIMMY

TURNER, Warden; JASON D.

MEDLIN, Captain Shift Commander;

CORRECTIONS CORPORATION OF

AMERICA; JOHN/JANE DOE, also

known as Officer Cunningham, also

known as Sgt. Crawford, also known

as Lt. Thomas; DONALD DORSEY,

Warden, Torrance County

Correctional Facility; J. PRESTON,

Sergeant, Torrance County

Correctional Facility; CLIFFORD

HARRIS, Correctional Officer,

Torrance County Correctional Facility,

EDWARD HINES, Assistant

Commanding Officer, Torrance

County Correctional Facility;

JOHN/JANE DOE, also known as

Oberge, Commander, Torrance County

Correctional Facility; FELIX

GONZALES, Correctional Officer,

Torrance County Correctional Facility;

KIMBERLY BULLOCK, Correctional

Officer, Torrance County Correctional

Facility; JOHN/JANE DOE, also

known as Carpenter, Commander,

Torrance County Correctional Facility;

JOHN PENNYCUFF, Security,

Torrance County Correctional Facility;

ANN GARCIA, Director of Programs,

Torrance County Correctional Facility;

JUAN IBARRA, Unit Manager,

Torrance County Correctional Facility;

TRE O'BRIEN, Hospital

Administrator, Torrance County

Correctional Facility; JUDY

MARROW, Nurse, Torrance County

Correctional Facility; JANE DOE,

also known as Elaine, Nurse, Torrance

County Correctional Facility; RUSTY

SMITH, Chaplain, Torrance County

Correctional Facility; ARTHUR

JOHANNES, Officer, Torrance

County Correctional Facility;

WAYNE RICE, Officer, Torrance

County Correctional Facility;

DONALD DORSEY, Warden,

Torrance County Correctional Facility;

ADRIENNE POTEAT, Assistant

Director, Corrections Corporation of

America; J. PRESTON, Correctional

Officer, Torrance County Correctional

Officer; FELIX GONZALES,

Correctional Officer, Torrance County

Correctional Officer,

Defendants-Appellees.

No. 03-2301

(D.C. No. CIV-00-1370 MB/RHS)

(New Mexico)

ORDER AND JUDGMENT(*)

Before SEYMOUR, LUCERO, and

O'BRIEN, Circuit Judges.

Maceo Jones is a pro se prison inmate who seeks leave to appeal in

forma

pauperis the district court's order dismissing all claims against all defendants due

to Mr. Jones' failure to exhaust available administrative remedies as required by

42 U.S.C. 1997e(a).

This case has a complicated procedural history which began in January

1999, when Mr. Jones filed his original complaint in the United States District

Court for the District of Columbia under 42 U.S.C. 1983 alleging various

constitutional claims arising from his incarceration at a private prison in

Youngstown, Ohio. Corrections Corporation of America (CCA) operated the

prison under a contract with the District of Columbia. Mr. Jones named as

defendants three officials of the District of Columbia, the chairman and president

of CCA, and various employees of CCA who worked at the Youngstown prison.

Mr. Jones also alleged he was unlawfully transferred to another private prison

operated by CCA in Torrance County, New Mexico. He claimed the transfer

violated CCA's contract with the District of Columbia and the physical

conditions under which he was transported to New Mexico violated the Eighth

Amendment. Mr. Jones was subsequently transferred to a prison in Virginia.

Defendants filed a motion to dismiss Mr. Jones' complaint. Before the

court ruled on the motion, Mr. Jones filed an amended complaint in October

2000, alleging a variety of constitutional claims arising from his incarceration at

the Torrance prison. His claims included allegations of excessive force, an

unreasonable search, and the denial of medical treatment, due process and

religious freedom. Mr. Jones named as defendants the same three officials of the

District of Columbia, the chairman and president of CCA, and certain employees

of CCA who worked at the Torrance prison. The District of Columbia district

court dismissed Mr. Jones' original complaint, allowed the amended complaint to

stand, and ordered the case transferred to federal court in New Mexico.

The district court in New Mexico dismissed most of the claims alleged in

Mr. Jones' amended complaint sua sponte under 28 U.S.C. 1915(e)(2)(B)

and

Fed. R. Civ. P. 12(b)(6). It dismissed all of Mr. Jones' claims against defendants

in their official capacities. It dismissed all other claims against defendants

except for Mr. Jones' allegations against defendants Preston, Harris, Gonzales,

and Hines for use of excessive force and denial of medical treatment arising from

an incident that occurred at the Torrance prison on February 11, 1999. The

court entered a final judgment on the dismissed claims under Fed. R. Civ. P.

54(b). Mr. Jones appealed to this court.

In large measure, we affirmed the rulings of the district court. See Jones v.

Barry, 33 Fed. Appx. 967, 971 (10th Cir. April 25, 2002). However, we reversed

the court's dismissal of all official capacity claims. Id. at 971-72. In remanding

the case for further proceedings, we noted the court did not fully address or

dispose of Mr. Jones' claims against defendants Johannes and Rice, id. at 971

n.4, and directed the court to clarify its disposition of those claims.

On remand, the district court sua sponte dismissed defendants Rice and

Johannes, noting it had inadvertently omitted the dismissal of those defendants in

its earlier opinion and judgment and detailing its reasoning for dismissing them.

The remaining defendants then moved for dismissal on a number of grounds,

including Mr. Jones' failure to exhaust his administrative remedies. In an order

dated October 27, 2003, the district court granted the motions to dismiss on

failure to exhaust grounds and dismissed Mr. Jones' complaint without prejudice.

Mr. Jones appeals the district court's most recent order.

Three of Mr. Jones' allegations remained after remand: an excessive force

claim, a denial of medical treatment claim, and an unlawful transfer claim.

Defendants argue that the subsequent dismissal of Mr. Jones' complaint should

be affirmed for two reasons. First, defendants assert Mr. Jones' complaint was

properly dismissed under the "total exhaustion" rule because he failed in any

manner to grieve his unlawful transfer claim. Second, defendants claim Mr.

Jones has not exhausted his administrative remedies regarding the excessive force

and medical treatment claims because he did not pursue those grievances to their

conclusion. We review de novo a district court's finding of failure to exhaust

administrative remedies. Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.

2002). Additionally, we construe a pro se litigant's pleadings liberally, but we

need not accept conclusory allegations without supporting factual averments.

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

The Prison Litigation Reform Act (PLRA), 42 U.S.C. 1997e(a), requires

inmates to exhaust available administrative remedies, and suits filed before the

exhaustion requirement is met must be dismissed. Booth v. Churner, 532 U.S.

731, 740- 41 (2001); Yousef v. Reno, 254 F.3d 1214, 1216 n.1 (10th Cir. 2001).

"[T]he substantive meaning of § 1997e(a) is clear: resort to a prison grievance

process must precede resort to a court." Steele v. Fed. Bureau of Prisons, 355

F.3d 1204, 1207 (10th Cir. 2003) (internal quotation and citation omitted). In a §

1983 action, the burden is on the prisoner to sufficiently plead exhaustion of

administrative remedies under § 1997e(a), which includes supplying supporting

information or documentation of the exhaustion of his prison grievance

proceedings. Id. at 1209-10. "An inmate who begins the grievance process but

does not complete it is barred from pursuing a § 1983 claim under [the] PLRA

for failure to exhaust his administrative remedies." Jernigan, 304 F.3d at 1032.

In addition, the PLRA contains a total exhaustion requirement, and "the presence

of unexhausted claims in [a prisoner's] complaint require[s] the district court to

dismiss his action in its entirety without prejudice." Ross v. County of

Bernalillo, 365 F.3d 1181, 1189 (10th Cir. 2004).

Mr. Jones has attached copies of six grievance forms to his complaint.

None of the grievances refer to Mr. Jones' unlawful transfer claim and nowhere

does Mr. Jones assert that he either grieved that claim or exhausted his

administrative remedies as to that claim. Instead, Mr. Jones argues that CCA

failed to respond to his grievances and thus, under Jernigan, 304 F.3d at 1032, he

should be deemed to have exhausted this claim. "While we agree that the failure

to respond to a grievance within the time limits contained in the grievance policy

renders an administrative remedy unavailable," id., that is not what appears to

have happened in this case. In fact, there is no evidence that Mr. Jones ever

attempted to grieve his prison transfer claim. Mr. Jones "may not successfully

argue that he had exhausted his administrative remedies by, in essence, failing to

employ them." Id. at 1033.

Nor has Mr. Jones sufficiently pled that he fully exhausted his excessive

force and medical treatment claims. Mr. Jones contends his transfer from the

Torrance prison to the prison in Virginia excuses him from having to fully

exhaust these claims. We cannot agree. The Supreme Court has "stress[ed] the

point" that there are no "futility or other exceptions" to the PLRA's exhaustion

requirement. Booth, 532 U.S. at 741 n.6. "Even where the 'available' remedies

would appear to be futile . . . the prisoner must exhaust the administrative

remedies available." Jernigan, 304 F.3d at 1032. Thus, the district court

correctly dismissed Mr. Jones' action without prejudice.

Defendants also seek affirmation of the district court's sua sponte

dismissal of defendants Rice and Johannes with prejudice. The district court

dismissed these defendants after remand because their names were "inadvertently

omitted" from the list of defendants the court intended to dismiss in its first sua

sponte opinion. We generally review the district court's dismissal with prejudice

for an abuse of discretion. Ohlander v. Larson, 114 F.3d 1531, 1536-37 (10th

Cir. 1997). Mr. Jones, however, does not even challenge on appeal the dismissal

of defendants Rice or Johannes. The notice of appeal in this case specifies for

this court's review only the district court's October 27, 2003 judgment

dismissing Mr. Jones' complaint for failure to exhaust available administrative

remedies. To the extent Mr. Jones may be attempting to appeal the dismissal of

defendants Rice and Johannes, these issues have not been properly raised and we

will not consider them. See Foote v. Spiegel, 118 F.3d 1416, 1422 (10th Cir.

1997) (noting court's lack of jurisdiction to review issues contained in parts of

orders not identified in notice of appeal); see also Fed. R. App. P. 3(c)(1)(B)

(stating notice of appeal must "designate the judgment, order, or part thereof

being appealed"). Even assuming, arguendo, that Mr. Jones had properly

appealed this issue, our review of the record convinces us that the court did not

abuse its discretion in dismissing defendants Rice and Johannes with prejudice.

We AFFIRM the district court's judgment against Mr. Jones. Mr.

Jones'

request to proceed in forma pauperis on appeal pursuant to 28 U.S.C. 1915

is

granted, but we remind Mr. Jones of his obligation to continue to make partial

payments until his entire fee has been paid.

SUBMITTED FOR THE COURT

Stephanie K. Seymour

Circuit Judge

FOOTNOTES

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

*.After examining appellant's brief and the

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) and 10th Cir. R.

34.1(G). The case is therefore submitted without oral argument. This order and

judgment is not binding precedent, except under the doctrines of law of the case,

res judicata, or 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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