F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 17 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
WILLIAM HUNT,
Plaintiff-Appellant, No. 03-1419
v. (D. Colorado)
JOSEPH ORTIZ, Ex. Dir. Colo. Dep’t (D.C. No. 03-Z-971)
of Corr.; JOSEPH McGARRY, Chief
Med. Officer, Colorado D.O.C.;
GARY WATKINS, Warden, Limon
Corr. Facility; SHERRY JASPER,
Limon Corr. Facility Med. Staff; DON
BRIGHTWELL, Limon Corr. Facility
Librarian Supervisor; JIM DAY,
Major, Limon Corr. Facility Programs
Manager; CHRISTOPHER
PETROZZI, Dir. Limon Corr. Facility
Clinic Serv.; B. RAGLAND, Lt.,
Limon Corr. Facility Program
Coordinator; ANDREW BRELAND,
Regional Co. D.O.C. Librarian; R.
KAHANIC, Cap’t., Limon Corr.
Facility Job Bd.; S. BUTLER, Lt.,
Limon Corr. Facility Job Bd.;
PHYLLIS WILSON, Limon Corr.
Facility Librarian, each in his or her
official and individual capacities,
Defendants-Appellees.
ORDER AND JUDGMENT *
*
This order and judgment is not binding precedent, except under the
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Before EBEL, HENRY, and HARTZ, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to decide this case on the briefs without oral argument. See Fed. R.
App. 34(a)(2).
William Hunt, a state prisoner proceeding pro se, is incarcerated at the
Limon Correctional Facility at Limon, Colorado. He filed an amended civil rights
complaint pursuant to 42 U.S.C. § 1983. The district court dismissed two of his
claims without prejudice for failure to exhaust administrative remedies, and the
court dismissed the balance of his complaint with prejudice because the claims
were frivolous. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
I. BACKGROUND
In his amended complaint, Mr. Hunt contends that on two occasions
(October 10, and 17, 2002), he refused to allow Limon Correctional Facility
authorities to draw blood to test him for HIV/AIDS. Mr. Hunt was “written up”
for each refusal. Following the hearing for his first write-up, Mr. Hunt was
*
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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.
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convicted of violating disciplinary rules, received ten days’ segregation, which
was suspended, and was placed on probation for ninety days. Following his
hearing for his second write-up, Mr. Hunt was convicted of violating disciplinary
rules, and he received thirty days’ segregation.
He raises four claims in his complaint: (1) his Fourth and Fourteenth
Amendment rights were violated when he was subjected to the mandatory testing,
and when defendants disclosed in the notice of disciplinary charges that he
refused to provide a blood sample for AIDS testing; (2) his convictions of the
disciplinary charges were unlawful retaliation against him for refusing to provide
a blood sample; (3) his equal protection rights were violated because the
administrative regulations requiring AIDS testing is not applied to any other
inmates at the Limon Correctional Facility; and (4) he was unlawfully retaliated
against for filing grievances regarding the involuntary AIDS testing, evidenced by
his loss of his prison job and his denial of access to the law library.
The district court examined Mr. Hunt’s first two claims on the merits and
determined that our precedent indicates there is no Fourth Amendment violation
when a prisoner is subjected to involuntary AIDS testing, citing Dunn v. White,
880 F.2d 1188, 1197 (10th Cir. 1989). As a result, his constitutional rights were
not violated when prison officials disclosed in the notice of disciplinary charges
that Mr. Hunt was being tested for AIDS. The court also concluded that
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“threatening an inmate with placement in segregation for refusing to participate in
mandatory AIDS testing does not violate the Due Process Clause of the
Fourteenth Amendment.” Rec. doc. 11, at 7 (Dist. Ct. Order, filed Sept. 4, 2003).
Finally, the court concluded that Mr. Hunt could establish no retaliation claim
because “he does not have a constitutional right to refuse to provide a blood
sample for mandatory AIDS testing.” Id. at 8. The court dismissed claims (1)
and (2) as legally frivolous under 28 U.S.C. § 1915A. Id. at 9.
Following dismissal, Mr. Hunt filed a motion to reconsider under Fed. R.
Civ. P. 59(e), challenging the district court’s dismissal of his claims (1) and (2) as
legally frivolous. Mr. Hunt emphasized that prisoners have a right to privacy in
their medical records, and this information should not be disclosed to non-medical
personnel. The district court denied this motion after concluding Mr. Hunt could
demonstrate no intervening change in controlling law, no new evidence, and no
need to correct clear error or prevent manifest injustice.
The magistrate judge ordered Mr. Hunt to show cause why the balance of
the complaint should not be dismissed for failure to exhaust administrative
remedies. Mr. Hunt contends he exhausted his administrative remedies for the
remaining claims. He maintains he filed grievances and appeals for each write
up. He contends that the appeals were denied as untimely, which resulted from
the late receipt of the appeal form from his case manager.
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The district court closely examined the grievances Mr. Hunt filed and
determined that he did not exhaust his administrative remedies regarding claims
(3) and (4). The district court dismissed those claims without prejudice for
failure to exhaust.
II. DISCUSSION
We review de novo the district court’s finding of failure to exhaust
administrative remedies. See Miller v. Menghini, 213 F.3d 1244, 1246 (10th Cir.
2000) (“We review de novo a dismissal pursuant to section 1997e(a).”), overruled
on other grounds by Booth v. Churner, 532 U.S. 731 (2001). We review the
denial of Fed. R. Civ. P. 59(e) motion for an abuse of discretion. See Phelps v.
Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997). Since Mr. Hunt is pro se, we
liberally construe his filings. See Haines v. Kerner, 404 U.S. 519, 520 (1972)
(per curiam).
A. Dismissal for frivolousness
As to Mr. Hunt’s Fourth and Fourteenth Amendment claims, he maintains
that even if Colorado has a valid policy regarding screening for HIV, his refusal
to allow the blood draw was disclosed to non-medical personnel, who then
disclosed this information to inmates in his unit, resulting in constitutional
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violations. Mr. Hunt alleges that the inmates and DOC staff assumed he is HIV
positive and that he was shunned and suffered ridicule, harassment, and
psychological injuries as a result. Mr. Hunt also points to DOC’s strict
regulations regarding the unauthorized disclosure of the “strictly confidential”
reports and records concerning persons who are diagnosed with AIDS. See Rec.
doc. 12, Mot. for Relief from Order of Judgment and Dismissal of Claims due to
the Court’s Findings that They are Legally Frivolous, Attach. “A” (AIDS Staff
Briefing Form on Confidentiality) at 3 (Colo. Rev. Stat. § 25-4-1404 Use of
Reports, commentary).
The refusal to take a medical test does not qualify as a confidential
information, although we acknowledge that the unnecessary dissemination of such
information may result uncalled for ridicule of an inmate. Taking Mr. Hunt’s
allegations as true, as we must, we hold that Mr. Hunt’s contention that the
disclosure of his refusal to take the HIV test is not frivolous, but that it does fail
to state a claim under Dunn, 880 F.2d at 1196 (“In light of the seriousness of the
disease and its transmissibility, we conclude that the prison has a substantial
interest in pursuing a program to treat those infected with the disease and in
taking steps to prevent further transmission. We further conclude that the
prison’s substantial interest outweighs plaintiff’s expectation of privacy.”).
Although, “[t]here is no dispute that confidential medical information is entitled
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to constitutional privacy protection,” A.L.A. v. West Valley City, 26 F.3d 989, 990
(10th Cir. 1994), the disclosure of non-confidential information for the purposes
of a disciplinary write-up does not meet this standard. However, we agree with
the district court that Mr. Hunt’s second claim, that his conviction through the
disciplinary hearing for the refusal to take the test was retaliatory, is frivolous.
B. Failure to exhaust
The district court dismissed Mr. Hunt’s third and fourth claims for failure
to exhaust. Pursuant to the Prison Litigation Reform Act of 1995, prisoners
bringing suit under § 1983 must first exhaust available administrative remedies
before seeking relief in federal court. 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 law, by a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are exhausted.”). Full
exhaustion of available remedies is required regardless of the nature of the relief
sought. Booth, 532 U.S. at 741.
As the district court explained, the Limon Correctional Facility has a multi-
tier approach to resolving inmate complaints. To exhaust available remedies at
the facility, an inmate must (1) attempt to resolve matters informally and (2)
complete the three-step formal grievance procedure. “The response at the third
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and final step of the formal grievance process certifies that the grievance
procedure has been exhausted.” Rec. doc. 11, at 5.
Mr. Hunt does make scattered references to retaliation and the loss of his
prison job in certain of his grievances, but there is no link between his job
termination and his prior blood-testing grievances. Similarly, as to his denial of
access to the law library claim, there is little if any link to the prior blood-testing
grievances: he specifically mentions it in his Step III grievance, but there is no
mention of it in his Step I or Step II grievance. Finally, as to the equal protection
claim, the record supports the district court’s conclusion that Mr. Hunt did not
exhaust this claim. Thus, the district court correctly dismissed Mr. Hunt’s third
and fourth claims without prejudice.
III. CONCLUSION
Accordingly, we AFFIRM the district court’s dismissal of Mr. Hunt’s
complaint, albeit for slightly different reasons. We hold that Mr. Hunt failed to
state a claim on count (1), he raised a frivolous claim on count (2), and he failed
to exhaust the prison’s administrative remedies on counts (3) and (4).
Entered for the Court,
Robert H. Henry
Circuit Judge
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