FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 7, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
MARIO WILLIAMS,
Plaintiff - Appellant,
v. No. 13-7025
(D.C. No. 6:11-CV-00195-JHP-SPS)
ROBERT EZELL, Warden; MARTIN, (E.D. Oklahoma)
Assistant Warden; CHIEF COTTON,
Chief of Security; Sgt. W. BERNECK;
Sgt. HOSUM; Sgt. ROGERS; Sgt.
MORGAN; Sgt. ROBINSON; Capt.
KARR; MORGAL, Correctional
Counselor; C.O. SWAYZIE; C.B.
HERNANDEZ; BRIAN YANDALE;
C/M BARLOW; WAKEFIELD;
KATHY MILLER; NURSE LAIRD;
DEBBIE MORTON; Sgt.
WILLIAMSON; D. STEVENS; JIM
KIETH,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Plaintiff Mario Williams, a prisoner in the custody of the Oklahoma
Department of Corrections (DOC), brought civil-rights claims under 42 U.S.C.
§ 1983 in the United States District Court for the Eastern District of Oklahoma
against various employees of the Corrections Corporation of America, Inc. (CCA)
and one employee of the DOC (Defendants). Proceeding pro se, he appeals the
district court’s grant of summary judgment to all Defendants. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm except for the judgment with
respect to claims arising out of events in February 2011.
I. BACKGROUND
Plaintiff was incarcerated at Davis Correctional Facility (DCF), which is
operated by CCA under a contract with DOC. His claim against the DOC
employee is that she violated due process by denying administrative appellate
review of his convictions of in-prison misconduct. As for the CCA employees, he
alleges numerous violations of his constitutional rights while housed at DCF.
First, Plaintiff alleges that on September 29, 2009, the CCA Defendants removed
him from his cell in retaliation for exercising his First Amendment right to
complain about prison conditions, used excessive force in the removal, placed
him in a segregation cell without clothing or blankets, denied him the opportunity
to “decontaminate” after being pepper-sprayed, R. at 1505 (appellate page
numbering), and denied him medical treatment for injuries from the incident and
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other conditions. Second, he alleges that he was falsely charged with misconduct
in retaliation for pursuing grievances. Third, he alleges that the CCA Defendants
made false statements on his custody-assessment form to keep him housed in the
maximum-security unit; denied him showers, his property, his legal papers, legal
calls, clothing, and recreation time; denied him medical treatment when he had a
severe asthma attack; forced him to wash in a blood-covered shower; and denied
him foods that met his dietary restrictions. Fourth, he alleges that on February
11, 2011, the CCA Defendants placed him in a cell with a Satan-worshiping
prisoner who refused to let him have the bottom bunk (which he needed for
medical reasons), and that when he complained about his placement, he was sent
to a segregation cell where he was deprived of his property and showers and got
headaches from the 24-hour lights (the February 2011 claims).
Defendants filed a Martinez report, see Martinez v. Aaron, 570 F.2d 317,
319 (10th Cir. 1978) (approving district-court procedure of requiring prison
officials named in civil-rights lawsuits to investigate and report to court on
relevant facts at outset of case), and motions to dismiss or for summary judgment.
The Martinez report stated that Plaintiff was removed from his cell on
September 29, 2009, because he was not complying with staff orders; staff used
the least amount of force necessary; the disciplinary charges against him were
based on his misbehavior; and he received adequate medical care. It also found
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that Plaintiff had not exhausted his prison administrative remedies for any of the
claims in the lawsuit.
The district court granted summary judgment on the merits on Plaintiff’s
due-process claim against the DOC Defendant (the DOC Defendant did not raise
failure to exhaust). It ruled that he had not suffered a denial of a liberty interest
protected by due process because, with a sentence of life without parole, he was
not entitled to earn good-time credits under Oklahoma law, so the denial of such
credits imposed as discipline had no effect. See Okla. Stat. tit. 57, § 138(A)
(2012); Stephens v. Thomas, 19 F.3d 498, 501 (10th Cir. 1994) (revocation of
good-time credits from inmate not entitled to such credits does not implicate due
process). The court granted summary judgment on the claims against the CCA
Defendants because Plaintiff had failed to exhaust his administrative remedies. It
also disposed of Plaintiff’s September 2009 retaliation claim on the alternative
ground that the evidence established that he was disciplined for his misbehavior,
not for exercising his constitutional rights. And it denied his motion for a
preliminary injunction and his motion to compel discovery regarding the present
whereabouts of unserved defendants who had left their prison employment.
II. DISCUSSION
We review the district court’s grant of summary judgment de novo,
“applying the same standards that the district court should have applied.”
Schanzenbach v. Town of Opal, Wyo., 706 F.3d 1269, 1272 (10th Cir. 2013)
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(internal quotation marks omitted). We construe Plaintiff’s pleadings liberally
because he proceeds pro se. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per
curiam).
A. Due Process
The district court correctly held that Plaintiff had no due-process rights in
his disciplinary hearings because no liberty interest was at stake. Although the
disciplinary orders denied him good-time credits, Plaintiff could not earn such
credits anyway because of his life sentence. In his reply brief Plaintiff argues
that the district court erred by failing to consider whether changes in his
conditions of confinement violated his due-process rights because they
“impose[d] atypical and significant hardship on [him] in relation to the ordinary
incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). But
Plaintiff had not argued this point in district court or in his opening brief, and we
generally “do not address arguments presented for the first time on appeal . . .
[or] in a reply brief.” United States v. Mora, 293 F.3d 1213, 1216 (10th Cir.
2002).
B. Failure to Exhaust
The Prison Litigation Reform Act (PLRA) requires that a prisoner exhaust
his administrative remedies before bringing a lawsuit for violation of his federally
protected rights. See 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
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law, by a prisoner confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.”). “[T]he PLRA’s
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). “An inmate who begins the grievance process but does not complete it is
barred from pursuing a § 1983 claim. . . .” Little v. Jones, 607 F.3d 1245, 1249
(10th Cir. 2010) (internal quotation marks omitted). The PLRA’s exhaustion
requirement applies to inmates held in privately operated facilities. See Ross v.
County of Bernalillo, 365 F.3d 1181, 1184 (10th Cir. 2004), abrogated in part on
other grounds by Jones v. Bock, 549 U.S. 199 (2007). “We review de novo the
district court’s finding of failure to exhaust administrative remedies,” Little, 607
F.3d at 1249 (internal quotation marks omitted), although findings of historical
fact are reviewed only for clear error.
The Martinez report shows that Plaintiff never filed grievances about most
of his claims in this lawsuit. Of those issues he did take steps to grieve, he
generally either (1) failed to attempt informal resolution before filing a formal
grievance, as required by CCA policy, or (2) filed an emergency grievance to
bypass the informal-resolution requirement even though it was clear that there
was no emergency.
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Plaintiff offers two responses. First, he claims that under DOC grievance
policy he had no obligation to file informal resolutions. But Plaintiff does not
dispute that he was housed at a CCA-operated facility with its own grievance
policy.
Second, Plaintiff asserts that the district court failed to consider additional
grievance forms that he presented to the court. He argues that these forms
demonstrate that administrative remedies were unavailable to him because CCA
staff thwarted his exhaustion efforts. See Tuckel v. Grover, 660 F.3d 1249, 1252
(10th Cir. 2011) (“[A]n administrative remedy is not ‘available’ under the PLRA
if prison officials prevent, thwart, or hinder a prisoner’s efforts to avail himself of
the administrative remedy.” (brackets and internal quotation marks omitted)). For
the most part, however, the additional documents do not help him because they
reveal that his claims were either untimely or improperly filed as emergency
grievances when there was clearly no emergency.
But the documents appear adequate with respect to Plaintiff’s February
2011 claims. They indicate that he was unable to submit a grievance on those
claims because he received no responses to his attempts to pursue the prerequisite
informal resolution.
The CCA Defendants argue on appeal that Plaintiff “provided no evidence
to the District Court showing that [the additional documents] were ever actually
submitted or received by the Grievance Coordinator.” CCA Aplee. Br. at 15. But
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the documents were attached to his declaration of December 7, 2011, stating that
he submitted the documents. (His declaration did not identify the documents by
exhibit numbers, but they were readily indentifiable so the authentication was
adequate for a pro se pleading.) The CCA Defendants also assert that to properly
exhaust, Plaintiff had to file a grievance complaining about Defendants’
unresponsiveness to his grievances; but they do not cite any CCA grievance
policy to that effect and they do not explain why Plaintiff’s documents are not
adequate in that regard.
The district court did not rule on the merits of the February 2011 claims,
nor do the CCA Defendants dispute the merits of those claims on appeal. Hence,
we must reverse the grant of summary judgment with respect to the February
2011 claims and remand for further proceedings on those claims.
C. Motions for Discovery and a Preliminary Injunction
Plaintiff argues that the district court abused its discretion in declining to
grant his motions for discovery and for a preliminary injunction. Our review is
for abuse of discretion, see Regan-Touhy v. Walgreen Co., 526 F.3d 641, 647
(10th Cir. 2008) (“We review a district court’s discovery rulings . . . for abuse of
discretion.”); Little, 607 F.3d at 1250 (“We review the denial of a preliminary
injunction for abuse of discretion.”), and we see no abuse of discretion here.
D. Appointment of Counsel
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Finally, Plaintiff argues that the district court erred by failing to grant his
request that it appoint counsel for him. Plaintiff had no constitutional right to
representation in his § 1983 lawsuit, see Johnson v. Johnson, 466 F.3d 1213, 1217
(10th Cir. 2006), and our review is for abuse of discretion, see Steffey v. Orman,
461 F.3d 1218, 1223 (10th Cir. 2006) (We review “a district court’s refusal to
appoint counsel for an indigent prisoner in a civil case for abuse of discretion.”
(internal quotation marks omitted)). There was no abuse of discretion here
because Plaintiff never demonstrated that denial of representation “result[ed] in
fundamental unfairness.” Id. (internal quotation marks omitted).
III. CONCLUSION
We AFFIRM the judgment below on all of Plaintiff’s claims except his
February 2011 claims against the CCA Defendants. As to Plaintiff’s February
2011 claims, we VACATE the district court’s judgment and REMAND for further
proceedings. We GRANT Plaintiff’s motion to proceed in forma pauperis on
appeal, but remind him of his obligation to continue making partial payments
until the entire filing fee has been paid.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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