F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 7 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
VICTOR STEELE,
Plaintiff-Appellant, No. 03-1368
v. District of Colorado
FEDERAL BUREAU OF PRISONS, (D.C. No. 02-B-1894 (MJW))
WARDEN HOLT; PA GARCIA;
WARDEN GUNJA, and unknown
Federal Bureau of Prisons hospital
staff personnel,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before EBEL , MURPHY , and McCONNELL , 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). This 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This order and judgment is not binding precedent, except under the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. 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.
Plaintiff Victor Steele is appealing the District Court of Colorado’s order
dismissing his complaint, which was brought pursuant to 28 U.S.C. §§ 1331 and
1343 and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403
U.S. 388 (1971). Steele alleges abuse, deliberate withholding of medical
treatment, and retaliation by prison staff. He further alleges that the BOP’s
administrative procedure for processing inmate grievances is unconstitutional.
Though the district court did not specify whether Steele’s claim was dismissed
with or without prejudice, we assume that the dismissal was without prejudice.
After a considered review of the record and proceedings below, we affirm that
decision.
The Plaintiff filed his Second Amended Complaint in December 2002,
naming as defendants the Federal Bureau of Prisons, Warden Holt, Dr. Baron,
P.A. Garcia, Dr. Patel, Warden Gunja, and unknown BOP and Hospital Staff. In
May 2003, defendants BOP, Holt, Garcia, and Gunja filed a motion to dismiss.
The district court transferred the matter to United States Magistrate Judge
Michael J. Watanabe.
Magistrate Judge Watanabe recommended that all claims against the BOP
and all claims against BOP and hospital employees in their “official capacities”
should be dismissed. Citing Hatten v. White , 275 F.3d 1208, 1210 (10th Cir.
2002), and Lattimore v. RKK Enterprises Inc. , No. 95-1333 1996 WL 381730 at
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*2 (10th Cir. 1996), he found that Bivens actions may not be filed against federal
agencies or federal agents acting in their official capacities. That determination
is consistent with the holding of this Court in Steele v. Fed. Bureau of Prisons ,
355 F.3d 1204, 1214 (10th Cir. 2003). Therefore, pursuant to Fed. R. Civ. P.
12(b)(1), Judge Watanabe recommended the dismissal of Plaintiff’s official
capacity claims. He further recommended that the district court dismiss the claim
against Dr. Patel, on the ground that Dr. Patel lacked the minimum contacts with
the State of Colorado necessary to establish personal jurisdiction.
The Magistrate Judge also recommended that the defendants’ motion to
dismiss be granted pursuant to Fed. R. Civ. P. 12(b)(6) because Steele failed to
exhaust his administrative remedies as required under 42 U.S.C § 1997e(a). He
similarly advised that the claims against Baron and the Unknown BOP and
Hospital Staff be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
In July 2003, after a de novo review, the district court adopted the
magistrate judge’s recommendations and dismissed the case. Steele timely filed a
notice of appeal. 1
In this appeal, Steele challenges the district court’s ruling in
part, arguing that the court erred in dismissing his case for failure to exhaust.
The district court denied Steele’s motion for reconsideration on July 21,
1
2003, and the appeal is deemed filed as of August 18, 2003, which is the date on
the certificate of service attached to the notice of appeal. See United States v.
Ceballos-Martinez, 358 F.3d 732 (10th Cir. 2004).
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Nowhere does Steele contend that the court’s dismissal of claims against the
BOP, Patel, Baron, or unknown staff was erroneous or improper. Any such
challenge is therefore waived. We turn now to his appeal.
The Prison Litigation Reform Act (PLRA) of 1996 posits that “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.” 42 U.S.C § 1997e(a). The BOP maintains a four-step procedure for
processing inmate grievances. The inmate must first attempt to resolve his
complaint informally with his prison counselor. 28 C.F.R § 542.13. If unable to
reach an informal resolution, the inmate may then direct his complaint to the
Warden through a written administrative remedy request. 28 C.F.R §§ 542.13,
542.14. After the warden’s response, if still unsatisfied, the prisoner may submit
an appeal to the Regional Director. 28 C.F.R. § 542.15(a). Finally, the inmate
may appeal to the Office of the General Counsel in Washington D.C. 28 C.F.R. §
542.15. Annexed to each stage of the process are time limits and procedural
instructions to which inmates are required to adhere.
In Ross v. County of Bernalillo , No. 02-2337, 2004 WL 902322 (10th Cir.
Apr. 28, 2004) (published), following the Eighth Circuit’s lead in Graves v.
Norris , 218 F.3d 884, 885 (8th Cir. 2000), this Court held that unless all available
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remedies are exhausted for all of the claims in a Bivens action, the action must be
dismissed. Therefore, in accordance with this total exhaustion requirement,
Steele must demonstrate that all prison grievance complaints covered by his
action have been administratively exhausted. The inclusion of any unexhausted
claims is sufficient grounds for the dismissal of the entire action under the total
exhaustion requirement.
Steele claims only to have exhausted the available administrative remedies
in two administrative cases, Nos. 241658 and 242809, relating to his firing from
his prison job, his assignment to a Special Housing Unit, alleged inappropriate
conduct of a staff psychologist, and the intentional misdiagnosis and withholding
of medical treatment by a prison doctor. Several other alleged abuses enumerated
in Steele’s original claim, such as the denial of a method of transfer that would
not cause him unnecessary pain and suffering, were never pursued
administratively. Therefore, the extent to which Steele’s transfer schedule
conflicted with administrative time deadlines and restricted the availability of
administrative recourse in Case No. 241703, involving his firing from his prison
job, need not be considered.
As a factual matter, Steele failed to exhaust even in the two cases in which
he claims to have pursued all administrative remedies. In both cases, he failed to
follow instructions and added new grievances to his complaints as they made their
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way through the administrative process. No one distinct grievance ever
progressed from the initial informal resolution to the final appeal to the Office of
the General Counsel. As a matter of both fact and law, then, the district court
found correctly that Steele failed to state a claim upon which relief can be granted
because he has not exhausted his available administrative remedies.
Steele maintains that by filing a claim for monetary damages under the
Federal Tort Claims Act, he satisfied the exhaustion requirement of his Bivens
claim. He is correct to observe that BOP regulations in force at the time state that
“Requests or Appeals will not be accepted under the Administrative Remedy
Program for claims for which other administrative procedures have been
established, including tort claims.” 28 C.F.R § 542.16(b) (deleted Aug. 6, 2002).
Regulations required BOP staff to instruct the prisoner that exclusively monetary
claims are to be pursued under the FTCA. Program Statement § 1330.13, R. doc.
67, Ex. BB. But the relevant program statement clarified that “when corrective
action as well as monetary relief is requested or implicated, inmates may use this
Program. The response to such Requests or Appeals shall address the potential
non-monetary relief.” Id. Steele’s complaint sought monetary damages, an
apology from BOP staff, and permanent hospitalization. In accordance with this
provision, the Administrative Remedy Program was the appropriate vehicle
through which Steele ought to have pursued his claims for non-monetary relief.
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Furthermore, filing an FTCA claim would not exempt Steele from the
PLRA exhaustion requirement even absent the provision requiring joint monetary
and non-monetary claims to be pursued through the Administrative Remedy
Program. The Supreme Court has held that Congress did not intend to allow
inmates to avoid exhaustion merely by tailoring their requests for relief to
preclude the availability of certain administrative remedies. Booth v. Churner ,
532 U.S. 731, 740-41 (2001). The language of the PLRA’s exhaustion
requirement applies to all available procedural remedies, not merely particular
species of redress. Id. at 738-39. Whether Steele filed a claim for monetary, non-
monetary, or both forms of relief, the Administrative Remedy Program is still
considered available and must be exhausted in compliance with the PLRA.
We further find that the district court acted properly in dismissing this
claim without an evidentiary hearing or jury trial. Steele’s contention that
exhaustion is an affirmative defense was rejected by this court in Steele . Id. at
1209. The burden to present facts establishing exhaustion must be carried by
Steele. Id at 1210. Nowhere in the record does Steele allege facts sufficient to
meet that burden. We therefore concur with the district court’s determination that
Steele has failed to demonstrate exhaustion and thus to state a claim under Bivens .
Finally, Steele challenges the constitutionality of the BOP’s Administrative
Remedy Program. We find that Steele has failed to preserve throughout the
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various stages of proceedings any coherent constitutional challenge. Rather, he
amends, replaces, and substitutes various allegations that purportedly amount to
constitutional infirmities in the process. As each is rejected by the magistrate
judge or the district court, he alters his charge as the case progresses. Even in this
appeal, the constitutional claims offered in the original Appellant’s Brief bear
little resemblance to the arguments offered in the Appellant’s Reply Brief. Rather
than respond to the Appellees’ cogent analysis of his constitutional claims in the
Answer Brief, Steele shifts gears, substituting new claims and arguments for those
previously presented. Only the general rubric of a constitutional challenge
remains constant.
We therefore hold that Plaintiff has preserved no challenge to the
constitutionality of the PLRA’s exhaustion requirement or the BOP’s
Administrative Remedy Program. As he has failed to exhaust all available
administrative remedies as required by the PLRA, the district court appropriately
dismissed his case as failing to state a Bivens claim.
The judgment of the United States District Court for the District of
Colorado is AFFIRMED .
Entered for the Court,
Michael W. McConnell
Circuit Judge
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