FILED
United States Court of Appeals
Tenth Circuit
June 4, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
DON A. HOWARD,
Plaintiff - Appellant, No. 10-7008
v. (E.D. Oklahoma)
BRANDI BIRCHFIELD and RANDY (D.C. No. 6:09-CV-00400-FHS-SPS)
HOLLAND,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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.
*
This order and judgment is not binding precedent except under the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 and appellant, Don A. Howard, a state prisoner proceeding pro se,
appeals the dismissal of his 42 U.S.C. § 1983 claim that his constitutional rights
were violated because he was denied adequate dental care. We affirm.
Mr. Howard is an inmate at the Howard McLeod Correctional Center
(“HMCC”) and under the custody of the Oklahoma Department of Corrections.
He brought this § 1983 action against Dr. Randy Holland, a dentist at HMCC, and
Brandi Birchfield, the HMCC medical clinic supervisor, arguing that they had
violated his Eighth Amendment right to be free from cruel and unusual
punishment by failing to provide him with dentures.
Dr. Holland and Ms. Birchfield filed a motion to dismiss/motion for
summary judgment, in which they argued that Mr. Howard had failed to exhaust
his administrative remedies and that dismissal was therefore appropriate. They
also argued that Mr. Howard had failed to establish a claim for deliberate
indifference to his serious medical needs, and that they were entitled to qualified
immunity and Eleventh Amendment immunity.
The district court granted the defendants’ motion, finding that “[t]he record
shows that prior to commencing this lawsuit, plaintiff did not timely and properly
file an appeal to the proper individual concerning grievances filed for medical
reasons.” Op. & Order at 3, R. Vol. 1 at 124. While Mr. Howard argues that he
re-submitted his grievance appeal and did not receive any response, the district
court held that “the unauthorized re-submission cannot suffice to establish
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exhaustion of his administrative remedies.” Id. at 4. We agree with the district
court that the “record clearly shows plaintiff has failed to exhaust his
administrative remedies, as required by 42 U.S.C. § 1997e(a), and the deadlines
have passed for pursuing his administrative remedies under DOC policy.” Id.
For the foregoing reasons, the decision of the district court is AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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