Snyder v. Whetsel, (10th Cir. 2005)

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UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

TONY LORENZO SNYDER,

Plaintiff-Appellant,

v.

JOHN WHETSEL, Sheriff sued in his

individual capacity; JOHNNY DIRCK,

sued in his individual capacity; CLIFF

URANGA, Captain sued in his

individual capacity; BOBBY

CARSON, Captain sued in his

individual capacity; A. HARMON,

Oklahoma City police officer sued in

his individual capacity; JOHN

DOES 1-7, Detention Officers sued in

their individual capacities;

CARPENTER, Detention Officer sued

in his individual capacity;

GRANNADA, sued in his individual

capacity; JANE DOE, sued in her

individual capacity; SHOOPMAN,

Detention Officer sued in his

individual capacity.

Defendants-Appellees.

No. 04-6242

(D.C. No. 02-CV-1721-R)

(W.D. Okla.)

ORDER AND JUDGMENT(*)

Before HENRY, ANDERSON, and TYMKOVICH, 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.

Pro se plaintiff Tony Lorenzo Snyder appeals the district court's dismissal

of his 42 U.S.C. 1983 civil rights complaint, and that court's denial of his

request for appointment of counsel. We have jurisdiction under 28 U.S.C. 1291

and affirm.

Mr. Snyder's eleven-count complaint alleges that while he was a pretrial

detainee in the Oklahoma County Detention Center defendants violated certain of

his rights guaranteed by the United States Constitution. The district court

adopted the magistrate judge's report and recommendation, dismissing without

prejudice counts one, two, and six, concerning excessive force and conspiracy, for

failure to exhaust administrative remedies under 42 U.S.C. 1997e(a), and

dismissing without prejudice the remaining eight counts for failure to state a

claim under Fed. R. Civ. P. 12(b)(6) and 8(a).(1) The district court, by separate

order, also denied Mr. Snyder's motion for appointment of counsel. This appeal,

in which Mr. Snyder challenges the dismissal of counts one, two, and six, and the

denial of his motion to appoint counsel, followed.

We review a district court's decision regarding exhaustion de novo.

Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). We review a district

court's denial of a motion for appointment of counsel in a civil case for abuse of

discretion. Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). Because

Mr. Snyder is representing himself, we construe his pleadings liberally. Hall v.

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

The Prison Litigation Reform Act (PLRA) requires prisoners to timely and

completely exhaust available administrative remedies before filing suit under 42 U.S.C. 1983 concerning prison conditions. 42 U.S.C. 1997e(a);

Booth v.

Churner, 532 U.S. 731, 741 (2001); Jernigan, 304 F.3d at 1032. In a §

1983

action, the burden is on the prisoner to sufficiently plead exhaustion, which

includes supplying supporting documentation of exhaustion, or in its absence,

describing with specificity prison grievance proceedings. Steele v. Fed. Bureau

of Prisons, 355 F.3d 1204, 1209-10 (10th Cir. 2003), cert. denied, 125 S. Ct.

344

(2004).

Mr. Snyder asserts that the district court erroneously dismissed counts one,

two, and six because he attempted to exhaust his administrative remedies. Our

review of the record reveals that Mr. Snyder's attempts amounted to general

allegations that he had submitted requests to staff that were never answered, and

general allegations that he had requested grievance forms that were not provided.

His complaint did not, with respect to counts one, two, or six, make the

particularized averments of exhaustion that our case law requires. See id. at 1211

(stating that action must be dismissed under § 1997e where particularized

averments concerning exhaustion are absent). We therefore see no error in the

district court's dismissal without prejudice of these three counts for failure to

exhaust administrative remedies.

Mr. Snyder also challenges the district court's denial of his motion for

appointment of counsel, claiming that he "litigated from a cell . . . without [a] law

library . . . [which] is unfair on its face," Aplt. Br. at 19. In a similar vein, he

argues that, without counsel, he has been unable to demonstrate his attempts to

exhaust administrative remedies. "The appointment of counsel in a civil case is

left to the sound discretion of the district court." Shabazz v. Askins, 14 F.3d 533,

535 (10th Cir. 1994). The district court in this case considered the factors

pertinent to deciding whether to appoint counsel and found appointment of

counsel unnecessary. See Rucks, 57 F.3d at 979 (listing factors). Our review

leads us to conclude that the district court did not abuse its discretion in reaching

that conclusion.

Mr. Snyder's motion to proceed on appeal in forma pauperis is GRANTED,

and we remind him that he remains obligated to make partial payments until the

entire appellate filing fee is paid. Both the district court's July 15, 2004, order

dismissing Mr. Snyder's civil rights complaint without prejudice to refiling, and

that court's July 7, 2004, order denying Mr. Snyder's motion for appointment of

counsel, are AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Timothy M. Tymkovich

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.

1. When a prisoner's complaint

concerning prison conditions contains one or

more unexhausted claims, the district court usually must dismiss the complaint in

its entirety and without prejudice to refiling. Ross v. County of

Bernalillo, 365

F.3d 1181, 1189, 1190 (10th Cir. 2004); 42 U.S.C. 1997e(a) (prohibiting an

"action" from proceeding until available administrative remedies are exhausted).

But where, as here, "a claim . . . fails to state a claim upon which relief can be

granted, . . . the court may dismiss the underlying claim without first requiring

the exhaustion of administrative remedies," Ross, 365 F.3d at 1190 n.13

(quoting

§ 1997e(c)(2)).

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