Thomas v. Parker

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH June 23, 2010
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court

TENTH CIRCUIT

JERRY L. THOMAS,

Plaintiff-Appellant,

v. No. 09-6203

DAVID PARKER; RODNEY
REDMAN; BECKY GUFFY; BETSY
HORMEL; JIM REED; SHANNON
REED; AMY MADISON; DOUG
BYRD; JAY DRAWBRIDGE; JUSTIN
JONES; RICHARD KIRBY; RON
ANDERSON; DEBBIE MORTON;
LEO BROWN; JO GWINN; BRANDY
PAGE,

Defendants-Appellees.

JERRY L. THOMAS,

Plaintiff-Appellant,

v. No. 09-6204

BECKY GUFFY; DAVID PARKER;
DEBBIE MORTON; RODNEY
REDMAN; BETSY HORMEL; JAY
DRAWBRIDGE; BETSY GWINN;
BRANDY PAGE; RON ANDERSON;
BELL; BARNEY LAIRD,

Defendants-Appellees.
 APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. Nos. 5:07-CV-00599-W and 5:07-CV-00823-W)

Submitted on the briefs: *

Jerry L. Thomas, Pro se Appellant.

Jill Tsiakilos, Assistant Attorney General, Oklahoma Attorney General’s Office
Litigation Section, Oklahoma City, Oklahoma, for Defendants-Appellees.

Before BRISCOE, Chief Judge, BALDOCK, and TACHA, Circuit Judges.

BALDOCK, Circuit Judge.

Both of these appeals are brought by pro se Oklahoma prisoner Jerry L.

Thomas, also known as Madyun Abdulhaseeb. Mr. Thomas seeks to challenge

various conditions of his confinement at the James Crabtree Correctional Center

(JCCC), a prison in the Oklahoma Department of Corrections (ODOC). The

issues on appeal are (1) whether in No. 09-6204 Mr. Thomas exhausted his

administrative remedies; and (2) whether in both No. 09-6203 and No. 09-6204

the district court abused its discretion in denying Mr. Thomas’s motions under

*
After examining the briefs and appellate records, this panel has determined
unanimously that oral argument would not materially assist the determination of
these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are
therefore ordered submitted without oral argument.

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Fed. R. Civ. P. 60(b)(3) alleging fraud on the court. This court on its own motion

has consolidated these appeals for submission and disposition.

We have jurisdiction under 28 U.S.C. § 1291. We affirm the district

court’s decisions in all respects. Because Mr. Thomas’s complaints about the

defendants’ conduct in No. 09-6203 are not baseless, we grant his motion to

proceed on appeal without prepayment of costs and fees in No. 09-6203. But

because he has become an abusive litigant with respect to his arguments about

exhaustion, and he does not present any non-frivolous arguments concerning the

denial of the Rule 60(b)(3) motion in No. 09-6204, in No. 09-6204 we deny his

motion to proceed on appeal without prepayment of costs and fees and dismiss the

appeal as frivolous.

I. BACKGROUND

Mr. Thomas has already unsuccessfully pursued claims about conditions at

JCCC. In Thomas v. Parker, 318 F. App’x 626, 627 (10th Cir.), cert. denied,

130 S. Ct. 249 (2009) (Thomas I), this court affirmed the district court’s

conclusion that he abandoned two claims, failed to state a claim for relief with

regard to two other claims, and failed to exhaust his administrative remedies with

regard to the remaining claims. Mr. Thomas then filed a Fed. R. Civ. P. 60(b)(3)

motion for relief from the judgment, arguing that defendants had committed fraud

on the court by altering the grievances attached to the special report ordered by

the court pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (en banc).

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He alleged that defendants had deliberately submitted incomplete grievance sets

and had altered the Grievance Log they tendered to the court. In denying the

Rule 60(b)(3) motion, the district court held Mr. Thomas had raised such

allegations and complaints before the court had issued its judgment. The court

also held that the alleged wrongful conduct did not impede Mr. Thomas’s ability

to defend against the defendants’ motion to dismiss. The denial of the Rule

60(b)(3) motion led to appeal No. 09-6203.

In a separate case, Mr. Thomas filed an eleven-count complaint challenging

various conditions of confinement at JCCC. He stipulated to the dismissal of his

first claim. The district court granted defendants’ second motion for summary

judgment and dismissed claims two through eleven, holding that, although

Mr. Thomas had filed grievances relating to his claims, he had not exhausted his

administrative remedies because he had not properly pursued the grievance

process to its conclusion with regard to any of those claims. Mr. Thomas filed a

Rule 60(b)(3) motion alleging that defendants had committed fraud on the court

by submitting one set of grievance documents with their first (and unsuccessful)

motion for summary judgment and a second, different set of grievance documents

with their second motion for summary judgment. He also asserted that defendants

had submitted incomplete and incorrect grievance paperwork in the case

underlying appeal No. 09-6203. Similar to the ruling in No. 09-6203, the district

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court held Mr. Thomas had raised such allegations and complaints before the

court had issued its judgment, and that the alleged wrongful conduct did not

impede Mr. Thomas’s ability to defend against the defendants’

summary-judgment motion. The grant of summary judgment to defendants and

the denial of the Rule 60(b)(3) motion led to appeal No. 09-6204.

II. ANALYSIS

A. Exhaustion of Administrative Remedies (No. 09-6204)

“There is no question that exhaustion is mandatory under the [Prisoner

Litigation Reform Act (PLRA)] and that unexhausted claims cannot be brought in

court.” Jones v. Bock, 549 U.S. 199, 211 (2007). “We review de novo the district

court’s finding of failure to exhaust administrative remedies.” Jernigan v.

Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). The ODOC grievance process

has a requirement of informal consultation with staff, then three written steps:

a Request to Staff form, a formal grievance, and an appeal to the administrative

review authority. No. 09-6204, Record on Appeal at 1077-83.

With regard to each of his claims, Mr. Thomas submitted a Request to Staff

form, and then he submitted a formal grievance. But he had been placed on

grievance restriction, and his formal grievances did not comply with defendants’

interpretation of ODOC’s grievance-restriction policy. Defendants informed him

that the required statement of prior grievances must be notarized (instead of

containing an unnotarized declaration under penalty of perjury) and must describe

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prior grievances in more detail than the one-word descriptions he had used.

Accordingly, defendants returned the formal grievances to Mr. Thomas as

insufficient, with leave to correct within ten days. Rather than making any

attempt to correct the grievances, Mr. Thomas appealed to the administrative

review authority. In the earliest administrative appeal in the record on appeal in

No. 09-6204, the review authority directed Mr. Thomas to file complete

paperwork, including a facility response to the formal grievance, and returned the

grievance unanswered. Shortly thereafter, the review authority warned him that

incorrectly submitted appeals would be returned without a response. Ultimately

the review authority notified him that noncompliant appeals would not be

addressed or returned to him. Thus, his later appeals were left unanswered and

unreturned. The issue is whether under these circumstances Mr. Thomas has

satisfied ODOC’s grievance process, and, thus, the mandatory exhaustion rule.

Mr. Thomas argues that defendants made the grievance process unavailable

by placing him on grievance restriction and by requiring him to comply with their

interpretations of the grievance-restriction requirements. Particularly, he

complains that defendants required a notarized affidavit while denying him notary

service, failed to provide the proper forms to allow him to appeal, failed to return

documents to him as required by the grievance process, and imposed improper

and arbitrary requirements on his paperwork (e.g., directing him to use more than

one word to describe his prior grievances). He also argues that the review

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authority improperly refused to answer his appeals because the grievance policy

(OP-090124, § IX.A.2) gives him the right to appeal the determination that he

was abusing the grievance process.

“[T]he PLRA exhaustion requirement requires proper exhaustion.”

Woodford v. Ngo, 548 U.S. 81, 93 (2006). “The benefits of exhaustion can be

realized only if the prison grievance system is given a fair opportunity to consider

the grievance. The prison grievance system will not have such an opportunity

unless the grievant complies with the system’s critical procedural rules.” Id. at

95. Thus, “[i]n Woodford, we held that to properly exhaust administrative

remedies prisoners must ‘complete the administrative review process in

accordance with the applicable procedural rules,’ . . . –rules that are defined not

by the PLRA, but by the prison grievance process itself.” Jones, 549 U.S. at 218

(quoting Woodford, 548 U.S. at 88).

The district court did not err in concluding that Mr. Thomas failed to

exhaust his administrative remedies when he did not properly complete all three

required written steps. “An inmate who begins the grievance process but does not

complete it is barred from pursuing a § 1983 claim under PLRA for failure to

exhaust his administrative remedies.” Jernigan, 304 F.3d at 1032. “[T]he

doctrine of substantial compliance does not apply.” Id. Once notified of

deficiencies at the formal grievance stage, Mr. Thomas chose not to avail himself

of the opportunity to cure them. He then chose to continue to submit formal

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grievances that were contrary to defendants’ reasonable interpretation of the

grievance requirements. 1 Mr. Thomas “may not successfully argue that he had

exhausted his administrative remedies by, in essence, failing to employ them.”

Id. at 1033. 2 As to his contentions about OP-090124, § IX.A.2, it appears that the

first legal argument concerning this regulation appeared in Mr. Thomas’s

post-judgment motion for reconsideration. Such a motion “is not appropriate

to . . . advance arguments that could have been raised in prior briefing.” Servants

of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Thus, we decline

to consider this argument.

Our adverse ruling should not come as a surprise to Mr. Thomas. Both this

court and the district court previously rejected his arguments about the ODOC

grievance process and put him on notice that he should not rely on his own

contrary interpretations of the process to claim exhaustion. More than a year ago

1
To the extent Mr. Thomas argues he provided evidence that the defendants
made notary services unavailable to him, we note that the notary issue was not the
only reason for rejecting his grievances. See No. 09-6204, Record on Appeal at
1309-10 (“His grievances were returned unanswered due to procedural defects (in
addition to and beyond his failure to include a notarized affidavit) . . . .).”
2
In contrast to our recent decision in Little v. Jones, __ F.3d __,
No. 08-7095, 2010 WL 2267816, at *3-*4 (10th Cir. June 8, 2010), defendants
did not make the exhaustion process unavailable to Mr. Thomas by returning his
documents unanswered. Mr. Thomas refused to resubmit the grievances returned
by the warden at the formal grievance stage. Little recognizes that the grievance
procedure “expressly grants the warden the power to return the grievance
unanswered for proper completion when a prisoner’s grievance contains a
procedural defect.” Id. at *4 (quotation omitted).

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in Thomas I, 318 F. App’x at 627, for example, this court affirmed the dismissal

of sixteen unexhausted claims for substantially the reasons given by the district

court in case 07-CV-00599-W. In that case, Mr. Thomas raised some of the same

arguments he raises here. See Thomas v. Parker, No. 07-CV-00599-W, slip op.

at 12-13 (W.D. Okla. May 27, 2008) (report and recommendation adopted by the

district court) (“Plaintiff provides no adequate explanation regarding the

procedural defects and/or the steps he took, if any, to cure those defects. Instead,

Plaintiff contends that his placement on grievance restriction rendered

administrative remedies unavailable to him. Plaintiff argues, too, that Defendants

have prevented him from exhausting administrative remedies by imposing

technical requirements and refusing to give proper notice and/or instruction as to

those requirements. Not only are Plaintiff’s contentions unsupported by the

record, but further, as evidenced by the record and findings of the magistrate

judge in Case No. CIV-05-1211-W, Plaintiff is intimately familiar with the

compliance requirements of the ODOC’s grievance procedure and, in particular,

the requirements accompanying placement on grievance restriction.”); id. at 13

(“The Court rejects [Mr. Thomas’s] allegations as the record demonstrates

Plaintiff has refused to adhere to the requirements of the . . . grievance restriction

process, not that Defendants have acted to prevent him from satisfying those

requirements.”); id. at 24-26 (concluding that Mr. Thomas had not supported his

assertion that notary services were unavailable). More recently, this court also

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affirmed the dismissal of eight unexhausted claims for substantially the reasons

given by the district court in Western District of Oklahoma case

No. 05-CV-1211-W. Abdulhaseeb v. Calbone, 600 F.3d 1301, 1309 (10th Cir.

2010). In that case, the district court stated, “Plaintiff’s disagreement with prison

officials as to the appropriateness of a particular procedure under the

circumstances, or his belief that he should not have to correct a procedural

deficiency does not excuse his obligation to comply with the available process.”

Abdulhaseeb v. Calbone, No. 05-CV-1211-W, slip op. at 25 (W.D. Okla. Feb. 12,

2008) (report and recommendation adopted by the district court). Mr. Thomas

has become abusive in unreasonably continuing to appeal issues that this court

has already decided against him, and he is warned that he will be subject to

sanctions if he continues to raise such arguments.

B. Denial of Rule 60(b)(3) Motions (Nos. 09-6203 and 09-6204)

We review the denial of the Rule 60(b)(3) motions for abuse of discretion.

See Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1289 (10th Cir. 2005).

“[T]he district court’s ruling is only reviewed to determine if a definite, clear or

unmistakable error occurred.” Id. (quotation omitted). “Rule 60(b)(3) allows a

court to relieve a party from a final judgment based on ‘fraud . . .,

misrepresentation, or other misconduct of an adverse party.’” Id. at 1290

(quoting Rule 60(b)(3)). “[C]ourts have allowed parties to file a claim for fraud

on the court under subsection (b)(3).” Id. at 1291. “Proof of fraud upon the court

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must be by clear and convincing evidence.” United States v. Buck, 281 F.3d

1336, 1342 (10th Cir. 2002). “Moreover, the challenged behavior must

substantially have interfered with the aggrieved party’s ability fully and fairly to

prepare for and proceed at trial.” Zurich N. Am., 426 F.3d at 1290 (quotation

omitted).

1. No. 09-6203

Our review of the appellate records indicates that Mr. Thomas’s complaints

about the evidence in No. 09-6203 are not baseless. We certainly do not condone

a party’s submitting incomplete evidence or making assertions that arguably are

incorrect, but a claim of fraud on the court is difficult to establish. “Fraud on the

court is fraud which is directed to the judicial machinery itself and is not fraud

between the parties or fraudulent documents, false statements or perjury.” Buck,

281 F.3d at 1342 (alteration and quotation omitted).

Generally speaking, only the most egregious conduct, such as bribery
of a judge or members of a jury, or the fabrication of evidence by a
party in which an attorney is implicated will constitute a fraud on the
court. Less egregious misconduct, such as nondisclosure to the court
of facts allegedly pertinent to the matter before it, will not ordinarily
rise to the level of fraud on the court.

Zurich N. Am., 426 F.3d at 1291 (quotation omitted). Mr. Thomas’s allegations

are insufficient to establish fraud on the court because, at most, they show the

nondisclosure of evidence or the alteration of evidence by a party, with no

showing of attorney involvement. Further, his district-court motion fails to offer

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clear and convincing evidence to support his allegations. 3 Finally, nothing before

us undermines the district court’s conclusion that Mr. Thomas was not hindered in

defending against the defendants’ dispositive motion. Accordingly, the district

court did not abuse its discretion in denying the Rule 60(b)(3) motion.

2. No. 09-6204

For substantially the same reasons discussed above, we conclude that the

district court did not abuse its discretion in denying the Rule 60(b)(3) motion in

No. 09-6204. In fact, Mr. Thomas’s allegations in this appeal are substantially

weaker than his arguments in No. 09-6203. The predicate of his appellate

argument in both Nos. 09-6203 and 09-6204 is that Exhibits 3 through 15 attached

to Document 79 (the defendants’ second motion for summary judgment in

No. 09-6204) are the correct documents that also should have been filed in

No. 09-6203. It is difficult to see how there could be actionable fraud on the

court in No. 09-6204 if the district court had before it the correct documents when

it made its final decision.

3
Before this court, Mr. Thomas states that he has proof of the omissions and
alterations because defendants submitted different documents in this case and the
case underlying No. 09-6204. But he did not argue that before the district court.
Instead, his Rule 60(b)(3) motion in No. 09-6203 offered bare assertions
supported only by his own conclusory affidavit.

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III. CONCLUSION

The judgments of the district court are AFFIRMED. Mr. Thomas’s motion

to correct an error in his reply brief in No. 09-6203 is GRANTED. His motion to

proceed on appeal without prepayment of costs and fees in No. 09-6203 is

GRANTED. His motion to proceed on appeal without prepayment of costs and

fees in No. 09-6204 is DENIED because he has failed to present a nonfrivolous

argument in support of the issues on appeal, see DeBardeleben v. Quinlan,

937 F.2d 502, 505 (10th Cir. 1991), 4 and he is directed to pay the full appellate

filing fee. No. 09-6204 is DISMISSED as frivolous, and Mr. Thomas is assessed

a strike under 28 U.S.C. § 1915(g).

4
For the same reason, we conclude that the district court did not err in
denying leave to proceed on appeal in No. 09-6204 without prepayment of costs
and fees.

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