F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS FEB 10 2005
TENTH CIRCUIT PATRICK FISHER
Clerk
MACEO JONES,
Plaintiff-Appellant
v.
MARION S. BARRY, Mayor;
MARGARET MOORE, Director,
District of Columbia Department of
Corrections; DOCTOR GRANT,
President, Corrections Corporation of
America; WILLIS GIBSON, Warden,
Corrections Corporation of America;
ROB ADAM, Chief of Security;
DARREN SWENSON, Chief of
Security; T. ROBINSON, Captain
No. 03-2301
Shift Supervisor; DENISE YOUNG,
(D.C. No. CIV-00-1370 MB/RHS)
Classification Supervisor; DENISE
(New Mexico)
KING, Program Classification
Supervisor; JAY WARDEN OF
PROGRAMS OF CCA; JIMMY
TURNER, Warden; JASON D.
MEDLIN, Captain Shift Commander;
CORRECTIONS CORPORATION OF
AMERICA; JOHN/JANE DOE, also
known as Officer Cunningham, also
known as Sgt. Crawford, also known
as Lt. Thomas; DONALD DORSEY,
Warden, Torrance County Correctional
Facility; J. PRESTON, Sergeant,
Torrance County Correctional Facility;
CLIFFORD HARRIS, Correctional
Officer, Torrance County Correctional
Facility, EDWARD HINES, Assistant
Commanding Officer, Torrance
County Correctional Facility;
JOHN/JANE DOE, also known as
Oberge, Commander, Torrance County
Correctional Facility; FELIX
GONZALES, Correctional Officer,
Torrance County Correctional Facility;
KIMBERLY BULLOCK, Correctional
Officer, Torrance County Correctional
Facility; JOHN/JANE DOE, also
known as Carpenter, Commander,
Torrance County Correctional Facility;
JOHN PENNYCUFF, Security,
Torrance County Correctional Facility;
ANN GARCIA, Director of Programs,
Torrance County Correctional Facility;
JUAN IBARRA, Unit Manager,
Torrance County Correctional Facility;
TRE O’BRIEN, Hospital
Administrator, Torrance County
Correctional Facility; JUDY
MARROW, Nurse, Torrance County
Correctional Facility; JANE DOE, also
known as Elaine, Nurse, Torrance
County Correctional Facility; RUSTY
SMITH, Chaplain, Torrance County
Correctional Facility; ARTHUR
JOHANNES, Officer, Torrance
County Correctional Facility; WAYNE
RICE, Officer, Torrance County
Correctional Facility; DONALD
DORSEY, Warden, Torrance County
Correctional Facility; ADRIENNE
POTEAT, Assistant Director,
Corrections Corporation of America;
J. PRESTON, Correctional Officer,
Torrance County Correctional Officer;
FELIX GONZALES, Correctional
Officer, Torrance County Correctional
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Officer,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.
Maceo Jones is a pro se prison inmate who seeks leave to appeal in forma
pauperis the district court’s order dismissing all claims against all defendants due
to Mr. Jones’ failure to exhaust available administrative remedies as required by
42 U.S.C. § 1997e(a).
This case has a complicated procedural history which began in January
1999, when Mr. Jones filed his original complaint in the United States District
Court for the District of Columbia under 42 U.S.C. § 1983 alleging various
constitutional claims arising from his incarceration at a private prison in
Youngstown, Ohio. Corrections Corporation of America (CCA) operated the
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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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prison under a contract with the District of Columbia. Mr. Jones named as
defendants three officials of the District of Columbia, the chairman and president
of CCA, and various employees of CCA who worked at the Youngstown prison.
Mr. Jones also alleged he was unlawfully transferred to another private prison
operated by CCA in Torrance County, New Mexico. He claimed the transfer
violated CCA’s contract with the District of Columbia and the physical conditions
under which he was transported to New Mexico violated the Eighth Amendment.
Mr. Jones was subsequently transferred to a prison in Virginia.
Defendants filed a motion to dismiss Mr. Jones’ complaint. Before the
court ruled on the motion, Mr. Jones filed an amended complaint in October 2000,
alleging a variety of constitutional claims arising from his incarceration at the
Torrance prison. His claims included allegations of excessive force, an
unreasonable search, and the denial of medical treatment, due process and
religious freedom. Mr. Jones named as defendants the same three officials of the
District of Columbia, the chairman and president of CCA, and certain employees
of CCA who worked at the Torrance prison. The District of Columbia district
court dismissed Mr. Jones’ original complaint, allowed the amended complaint to
stand, and ordered the case transferred to federal court in New Mexico.
The district court in New Mexico dismissed most of the claims alleged in
Mr. Jones’ amended complaint sua sponte under 28 U.S.C. § 1915(e)(2)(B) and
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F ED . R. C IV . P. 12(b)(6). It dismissed all of Mr. Jones’ claims against defendants
in their official capacities. It dismissed all other claims against defendants except
for Mr. Jones’ allegations against defendants Preston, Harris, Gonzales, and Hines
for use of excessive force and denial of medical treatment arising from an
incident that occurred at the Torrance prison on February 11, 1999. The court
entered a final judgment on the dismissed claims under F ED . R. C IV . P. 54(b).
Mr. Jones appealed to this court.
In large measure, we affirmed the rulings of the district court. See Jones v.
Barry, 33 Fed. Appx. 967, 971 (10th Cir. April 25, 2002). However, we reversed
the court’s dismissal of all official capacity claims. Id. at 971-72. In remanding
the case for further proceedings, we noted the court did not fully address or
dispose of Mr. Jones’ claims against defendants Johannes and Rice, id. at 971 n.4,
and directed the court to clarify its disposition of those claims.
On remand, the district court sua sponte dismissed defendants Rice and
Johannes, noting it had inadvertently omitted the dismissal of those defendants in
its earlier opinion and judgment and detailing its reasoning for dismissing them.
The remaining defendants then moved for dismissal on a number of grounds,
including Mr. Jones’ failure to exhaust his administrative remedies. In an order
dated October 27, 2003, the district court granted the motions to dismiss on
failure to exhaust grounds and dismissed Mr. Jones’ complaint without prejudice.
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Mr. Jones appeals the district court’s most recent order.
Three of Mr. Jones’ allegations remained after remand: an excessive force
claim, a denial of medical treatment claim, and an unlawful transfer claim.
Defendants argue that the subsequent dismissal of Mr. Jones’ complaint should be
affirmed for two reasons. First, defendants assert Mr. Jones’ complaint was
properly dismissed under the “total exhaustion” rule because he failed in any
manner to grieve his unlawful transfer claim. Second, defendants claim Mr. Jones
has not exhausted his administrative remedies regarding the excessive force and
medical treatment claims because he did not pursue those grievances to their
conclusion. We review de novo a district court’s finding of failure to exhaust
administrative remedies. Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.
2002). Additionally, we construe a pro se litigant’s pleadings liberally, but we
need not accept conclusory allegations without supporting factual averments.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), requires
inmates to exhaust available administrative remedies, and suits filed before the
exhaustion requirement is met must be dismissed. Booth v. Churner, 532 U.S.
731, 740- 41 (2001); Yousef v. Reno, 254 F.3d 1214, 1216 n.1 (10th Cir. 2001).
“[T]he substantive meaning of § 1997e(a) is clear: resort to a prison grievance
process must precede resort to a court.” Steele v. Fed. Bureau of Prisons, 355
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F.3d 1204, 1207 (10th Cir. 2003) (internal quotation and citation omitted). In a §
1983 action, the burden is on the prisoner to sufficiently plead exhaustion of
administrative remedies under § 1997e(a), which includes supplying supporting
information or documentation of the exhaustion of his prison grievance
proceedings. Id. at 1209-10. “An inmate who begins the grievance process but
does not complete it is barred from pursuing a § 1983 claim under [the] PLRA for
failure to exhaust his administrative remedies.” Jernigan, 304 F.3d at 1032. In
addition, the PLRA contains a total exhaustion requirement, and “the presence of
unexhausted claims in [a prisoner’s] complaint require[s] the district court to
dismiss his action in its entirety without prejudice.” Ross v. County of Bernalillo,
365 F.3d 1181, 1189 (10th Cir. 2004).
Mr. Jones has attached copies of six grievance forms to his complaint.
None of the grievances refer to Mr. Jones’ unlawful transfer claim and nowhere
does Mr. Jones assert that he either grieved that claim or exhausted his
administrative remedies as to that claim. Instead, Mr. Jones argues that CCA
failed to respond to his grievances and thus, under Jernigan, 304 F.3d at 1032, he
should be deemed to have exhausted this claim. “While we agree that the failure
to respond to a grievance within the time limits contained in the grievance policy
renders an administrative remedy unavailable,” id., that is not what appears to
have happened in this case. In fact, there is no evidence that Mr. Jones ever
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attempted to grieve his prison transfer claim. Mr. Jones “may not successfully
argue that he had exhausted his administrative remedies by, in essence, failing to
employ them.” Id. at 1033.
Nor has Mr. Jones sufficiently pled that he fully exhausted his excessive
force and medical treatment claims. Mr. Jones contends his transfer from the
Torrance prison to the prison in Virginia excuses him from having to fully
exhaust these claims. We cannot agree. The Supreme Court has “stress[ed] the
point” that there are no “futility or other exceptions” to the PLRA’s exhaustion
requirement. Booth, 532 U.S. at 741 n.6. “Even where the ‘available’ remedies
would appear to be futile . . . the prisoner must exhaust the administrative
remedies available.” Jernigan, 304 F.3d at 1032. Thus, the district court
correctly dismissed Mr. Jones’ action without prejudice.
Defendants also seek affirmation of the district court’s sua sponte dismissal
of defendants Rice and Johannes with prejudice. The district court dismissed
these defendants after remand because their names were “inadvertently omitted”
from the list of defendants the court intended to dismiss in its first sua sponte
opinion. We generally review the district court’s dismissal with prejudice for an
abuse of discretion. Ohlander v. Larson, 114 F.3d 1531, 1536-37 (10th Cir.
1997). Mr. Jones, however, does not even challenge on appeal the dismissal of
defendants Rice or Johannes. The notice of appeal in this case specifies for this
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court’s review only the district court’s October 27, 2003 judgment dismissing Mr.
Jones’ complaint for failure to exhaust available administrative remedies. To the
extent Mr. Jones may be attempting to appeal the dismissal of defendants Rice
and Johannes, these issues have not been properly raised and we will not consider
them. See Foote v. Spiegel, 118 F.3d 1416, 1422 (10th Cir. 1997) (noting court’s
lack of jurisdiction to review issues contained in parts of orders not identified in
notice of appeal); see also F ED . R. A PP . P. 3(c)(1)(B) (stating notice of appeal
must “designate the judgment, order, or part thereof being appealed”). Even
assuming, arguendo, that Mr. Jones had properly appealed this issue, our review
of the record convinces us that the court did not abuse its discretion in dismissing
defendants Rice and Johannes with prejudice.
We AFFIRM the district court’s judgment against Mr. Jones. Mr. Jones’
request to proceed in forma pauperis on appeal pursuant to 28 U.S.C. § 1915 is
granted, but we remind Mr. Jones of his obligation to continue to make partial
payments until his entire fee has been paid.
SUBMITTED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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