Brumley v. Gabriel

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 6 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk

GREG BRUMLEY,

Plaintiff - Appellant,
vs. No. 97-3051
(D.C. No. 96-CV-3318)
SUSAN GABRIEL, Classifications (D. Kan.)
Manager, EDCF; MICHAEL A.
NELSON, Warden; DALE FRAZIER,
Unit Team Manager; WILLIAM
ADKINS, Unit Team; DAVID R.
MCCUNE, Warden, LCF; (NMI)
HERSH, Unit Team, LCF; (NFN)
RUTLEDGE, Unit Team, LCF; JOHN
DOES, Un-named Kansas Department
of Corrections Employees, all in their
individual capacities,

Defendants - Appellees.

ORDER AND JUDGMENT *

Before PORFILIO, KELLY, and HENRY, Circuit Judges. **

*
This order and judgment is not binding precedent, except under the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.
**
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. 34.1.9. The cause is therefore ordered submitted without oral argument.
 Mr. Brumley, an inmate appearing pro se and in forma pauperis, appeals

from the denial of his motion for reconsideration. He seeks declaratory,

injunctive and compensatory relief from various Kansas prison officials. He

contends that a requirement that he participate in a sexual offenders treatment

program while in prison violates several constitutional provisions, as well as

various state statutory and regulatory provisions. See generally Neal v. Shimoda,

131 F.3d 818 (9th Cir. 1997). Because he has not agreed to participate in the

program, he alleges that he has been subject to adverse classification decisions

(from Level III to Level I), withholding of good time credits, and inability to be

considered for a job. He relies heavily upon Payne v. Kansas Parole Bd., 887

P.2d 147, 151 (Kan. Ct. App. 1994), which held that program participation

requirements as a condition of parole eligibility do not apply retroactively to

those convicted prior to enactment.

The district court never reached the merits, holding that Mr. Brumley had

failed to exhaust administrative remedies in accordance with 42 U.S.C.

§ 1997e(a). Judgment was entered on July 5, 1996. Mr. Brumley moved for an

extension of time to file a motion for reconsideration, but not before the ten day

period in Fed. R. Civ. P. 59(e) had expired. Thereafter, Mr. Brumley’s motion for

reconsideration was filed, correctly construed as a Fed. R. Civ. P. 60(b) motion,

and denied by the district court.

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 Our review is for an abuse of discretion. Although Mr. Brumley did not

allege exhaustion, he included in his complaint a description of his efforts to

bring his claims to the attention of prison authorities, see I R. doc. 2, ¶ 10(b-i),

and a decision by the warden rejecting his claims, see id. exh. H. In his motion

for reconsideration, Plaintiff acknowledged that his attempts to exhaust have been

informal. See I R. doc. 8, ¶ 5(b) (“With no adequate formal administrative

remedy available to him, Plaintiff has attempted to informally resolve this issue

for eight months . . . .). In that motion he urged that (1) § 1997e did not apply

because this was a Bivens action, (2) under prior law, the district court could have

continued the action pending exhaustion and must do so now, (3) the federal

courts have a duty to exercise jurisdiction, (4) exhaustion would be futile because

no administrative remedy is available and the Kansas Department of Corrections

has predetermined the issue. Grounds (1) - (3) are meritless, and the district court

did not abuse its discretion in concluding that exhaustion should be required.

AFFIRMED. All pending motions are denied.

Entered for the Court

Paul J. Kelly, Jr.
Circuit Judge

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