Paulino v. (FNU)(LNU), (10th Cir. 2006)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

ALVIN A. PAULINO,

Plaintiff - Appellant,

vs.



(FNU) (LNU), one unknown deputy of

the United States Marshal Service, in

his individual capacity; WALTER

BRADLEY, in his individual capacity;

CORRECTIONS CORPORATION OF

AMERICA; UNITED STATES

MARSHAL SERVICE,

Defendant - Appellee.

No. 06-3285

(D.C. No. 05-CV-3348-SAC)

(D. Kan.)

ORDER AND JUDGMENT
name="txt*">(*)

Before KELLY,
name="9">McKAY, and
name="10">LUCERO, Circuit Judges.
name="txt2">(2)

Alvin A. Paulino, a federal inmate, appearing pro se, appeals the district

court's dismissal without prejudice of his claims brought against an unknown

deputy marshal of the United States Marshal Service with the first name Gary

("Deputy Marshal Gary"), United States Marshal Walter Bradley ("Marshal

Bradley"), the United States Marshal Service ("USMS"), and Corrections

Corporation of America ("CCA") pursuant to 42 U.S.C. 1983, 42 U.S.C. 1985(3), and Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388

(1971). Our jurisdiction arises under 28 U.S.C. 1291, and we affirm.

Mr. Paulino, in his complaint,(1)

makes numerous allegations relating to his

temporary incarceration at CCA's Leavenworth, Kansas facility while he was

awaiting transfer to a Federal Bureau of Prisons facility.
name="txt2a">(2) Mr. Paulino alleges

that the events underlying his complaint occurred on or after November 10, 2003.

Specifically, Mr. Paulino brought suit against Deputy Marshal Gary and Marshal

Bradley, in their individual capacities, pursuant to Bivens and 1983, alleging,

inter alia, that they intentionally subjected him to cruel and unusual punishment

in violation of the Eighth Amendment when they decided to place him on

"suicide watch." He claims that because of this decision he was forced to spend

four days and nights on a cold, damp floor and was not allowed to communicate

with his family. Mr. Paulino further alleges that Deputy Marshal Gary and

Marshal Bradley's decisions resulted in him being: (1) placed in solitary

confinement for an extended period of time without cause or explanation; (2)

denied meals numerous times; (3) denied required medical and psychological

examinations; and (4) denied a hearing regarding his placement in solitary

confinement and on suicide watch. Moreover, according to Mr. Paulino, Deputy

Marshal Gary made several intentionally false statements about Mr. Paulino that

caused his cruel and unusual punishment.

Mr. Paulino also brought suit against USMS and CCA pursuant to 42 U.S.C. 1985(3), alleging the two organizations conspired to deprive him of his

constitutional rights. Mr. Paulino asserts that USMS and CCA conspired to

deprive him of "equal protection of the law, and . . . equal privileges and

immunities under the law." R. Doc. 9 at 12.

Mr. Paulino claims that the defendants' actions caused him to develop a

stomach ulcer, to develop an aggravated heart condition, and to suffer mental and

emotional distress. Accordingly, he seeks compensatory damages, punitive

damages, and injunctive and declaratory relief.

We review de novo a district court's dismissal of a complaint for failure to

exhaust administrative remedies. Patel v. Fleming, 415 F.3d 1105, 1108 (10th

Cir.2005). Failure to exhaust administrative remedies as required by 42 U.S.C. §

1997e(a) will result in dismissal of the case. Booth v. Churner, 532 U.S. 731,

741 (2001). The statute provides that "[n]o 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." 42 U.S.C. 1997e(a).

This exhaustion requirement "applies to all inmate suits about prison life,

whether they involve general circumstances or particular episodes, and whether

they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S.

516, 532 (2002).

"A litigant's failure to raise issues during an administrative appeal can

constitute a failure to exhaust administrative remedies." Kikumura v. Hurley,

242 F.3d 950, 956 (10th Cir.2001). We recently explained that "a grievance

satisfies § 1997e(a)'s exhaustion requirement so long as it provides prison

officials with enough information to investigate and address the inmate's

complaint internally." Kikumura v. Osagie, 461 F.3d 1269, 1285 (10th Cir.

2006). Moreover, we have held "that 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).(3)

In his only grievance to prison officials, dated January 30, 2004, Mr.

Paulino claimed a general deprivation of his constitutional rights on November

10, 2003, when "a deputy of the United States Marshal Service" deliberately

violated his civil rights in retaliation for his crime and for "speaking the words I

did to the U.S. District Court who sentenced me." Mr. Paulino further alleged

that the retaliation included "punitive placement" on suicide watch for

approximately thirty days. These allegations, as the district court noted, only

implicate Deputy Marshal Gary and did not put prison officials on notice as to

any of the other claims later brought against Marshal Bradley.

The district court pointed out the exhaustion problem, as well as many

other deficiencies in the complaint and allowed Mr. Paulino leave to amend to

demonstrate exhaustion of administrative remedies and cure the deficiencies. For

substantially the reasons set forth by the district court after it examined the

amended complaint, we agree that the action must be dismissed for failure to

exhaust. R. Doc. 16 at 1-4. Although we do not disagree with the balance of the

district court's reasoning concerning whether the complaint states a claim, we do

not address those issues given that the judgment in this case plainly states it is a

dismissal without prejudice. R. Doc. 17; see Semtek Intern. Inc. v. Lockheed

Martin Corp., 531 U.S. 497, 505 (2001) ("[A]n 'adjudication upon the merits' is

the opposite of a 'dismissal without prejudice.'").

We note that in an attempt to avoid the PLRA's exhaustion requirement,

Mr. Paulino cites to Garrett v. Hawk, 127 F.3d 1263 (10th Cir. 1997), for the

proposition that "prisoners who file Bivens claims for monetary damages against

prison officials are not required to exhaust administrative remedies under the

PLRA . . . ." Aplt. Br. at 2. Mr. Paulino is correct regarding Garrett's holding;

however, Booth overruled Garrett over five years ago and we have since

remarked that "[e]ven where the 'available' remedies would appear to be futile at

providing the kind of remedy sought, the prisoner must exhaust the

administrative remedies available." Jernigan v. Stuchell, 304 F.3d 1030, 1032

(10th Cir. 2002) (citing Booth, 532 U.S. at 740). As a result, Mr. Paulino was

not excused from fully exhausting.

AFFIRMED. We remind Mr. Paulino of his continuing obligation to pay

his filing fee in partial payments.

Entered for the Court

Paul J. Kelly, Jr.

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. This 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.

2. After examining the briefs and the appellate

record, this three-judge

panel has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

1. Mr. Paulino filed his original complaint in

this case on August 24, 2005.

He also filed a an amended complaint on January 23, 2005, and an amended and

supplemented complaint on June 21, 2005.

2. Mr. Paulino is currently housed at a

federal facility located in Forrest

City, Arkansas. He is serving a 57 month sentence for possession of child

pornography.

3. This remains the case even where, as here,

some of the unexhausted

claims are brought against a private prison and/or its employees. See Beaudry v.

Corr. Corp. of Am., 331 F.3d 1164, 1165, 1167 (10th Cir. 2003) (dismissing a

1983 action against a private prison and several of its employees for failure to

exhaust).

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