F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 24, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
LEONARD BALDAUF,
Plaintiff-Appellant,
v. No. 04-1402
FRANCIS GAROUTTE, EUGENE (D.C. No. 03 RB 1104 (CBS))
ATHERTON; JOHN STONER; (D.Colo.)
STEVE SCHUH; CATHY SLACK;
VICKY RIDDLE; MIKE
ARELLANO; ED GILLESPIE;
DONALD MCCALL; GLORIA
BREIDENBACH; GARY PITTMAN;
MIKE WEBB; GERALD KNAPIC;
JOSEPH WILLIAM SIMS; DANIEL
GALLAGHER; DAVE LINAM;
KARRY PAINE; WILLIAM BEARD;
JAMES HALSTEAD; H. BENNETT;
CHARLES SHANNON; TOM
MARTIN; ELIAS RINCON; RON
LEYBA; JOHN HADLEY; ROBERT
STOCKMAN; GABE HERNANDEZ;
SEAN PRUITT; PAM KING; MATT
GOODWIN; JERRY AWMILLER;
RHONDA CORETTI; TERESA
REYNOLDS; DINEEN CRANDALL;
RICHARD FLORES; WESS
LEHMAN; JULIAN PADILLA;
CHRIS STARCER; GALE GRAHAM;
CHRISTIAN SNELSON; DAVID
SCHLOTTERER; WERMER;
SCAVARDA; LUSK; BELL; CAREY;
DECLUSIN; CORTEZ; E. MILLER;
JOE ORTIZ; LARRY REID; MORA;
RICHARD WRIGHT; DAN FOSTER;
THOMAS; AVANT; JAMES
MICHAUD; DON LAWSON;
ZANDER; OWENS; PHILIPS; BOB
FLORES; AMY HOUGH; BRAD
ROCKWELL; CATHY HOLST,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRISCOE, LUCERO, and MURPHY , Circuit Judges.
After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Leonard Baldauf, a prisoner at the Arkansas Valley Correctional Facility,
appearing pro se, appeals the district court’s dismissal of his 42 U.S.C. § 1983
action as well as the denial of motions for interim class counsel, default
judgment, and an order to cure deficiency. We exercise jurisdiction pursuant to
28 U.S.C. § 1291, affirm in part, reverse in part, and remand.
*
This order and judgment is not binding precedent, except under the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.
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I.
Baldauf filed his civil rights complaint against sixty-five named Colorado
Department of Corrections (CDOC) employees on June 17, 2003. The incidents
alleged in the complaint appear to have occurred while Baldauf was housed at the
Colorado State Penitentiary and the San Carlos Correctional Facility. The
magistrate judge interpreted the complaint as raising ten issues: (1) six of the
defendants are allegedly responsible for unnamed inmates being placed in
conditions of confinement that exacerbate mental disorders in violation of the
Eighth Amendment; (2) forty-three defendants allegedly violated the First
Amendment by retaliating against Baldauf for filing grievances; (3) fourteen
defendants allegedly infringed upon the due process protections afforded by the
Fourteenth Amendment by keeping Baldauf and other inmates in administrative
segregation without meaningful review and such extended segregation constitutes
cruel and unusual punishment in violation of the Eighth Amendment; (4) four
defendants allegedly violated the Eighth Amendment by failing to provide
medical care for an injury to Baldauf’s arm sustained in November 2001; (5) five
defendants allegedly violated the Eighth Amendment by using or allowing CDOC
employees to exploit intake cells to inflict corporal punishment; (6) nine
defendants allegedly violated Baldauf’s First Amendment rights by improperly
limiting the number of books allowed in administrative segregation and
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confiscating documents from Baldauf’s “legal mail”; (7) twenty defendants
allegedly violated Baldauf’s First Amendment rights by failing to provide
grievance forms; (8) on or about March 15, 2002, thirteen defendants allegedly
violated Baldauf’s Eighth Amendment rights through the use of excessive force
and deliberate indifference to conditions inflicted upon him while he was in the
observation or intake cell; (9) eighteen defendants allegedly violated the
Fourteenth Amendment by wrongfully depriving Baldauf of books and papers and
by improperly withdrawing funds from Baldauf’s inmate account to pay for a
broken television; and (10) seven defendants allegedly denied mental health
treatment to unnamed defendants. Attached to the complaint were copies of
letters from the grievance counselor indicating Baldauf had exhausted his
administrative remedies as to portions of some of his claims, but not all.
Defendants moved to dismiss some of the claims for failure to exhaust and
others for failure to state a claim, mootness, qualified immunity, and failure to
allege personal participation. The magistrate judge recommended that Baldauf’s
complaint be dismissed entirely without prejudice for failure to exhaust under 42
U.S.C. § 1997e(a). Baldauf filed objections to the magistrate judge’s report and
defendants filed a response to those objections. On September 3, 2004, the
district court adopted the magistrate judge’s recommendation, granted defendants’
motions to dismiss, and dismissed Baldauf’s complaint without prejudice for
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failure to exhaust administrative remedies.
On September 9, 2004, Baldauf filed a motion for an order to cure
deficiency that included several documents in an effort to show he had exhausted
all administrative remedies. On November 4, 2004, the magistrate judge issued a
report and recommendation that Baldauf’s motion for an order to cure deficiency
be denied for three reasons: (1) Baldauf’s notice of appeal divested the district
court of jurisdiction over the matter; (2) because the matter had been dismissed,
Baldauf’s request that the court consider additional documents was untimely; and
(3) the additional documents Baldauf provided were insufficient to show he had
exhausted his administrative remedies. The district court adopted the magistrate
judge’s recommendations on February 17, 2005 and denied the motion for order
to cure deficiency.
Baldauf now appeals.
II.
Failure to Exhaust
We review de novo the district court’s dismissal for failure to exhaust
administrative remedies. See Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.
2002). The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), requires
inmates to exhaust “available” administrative remedies prior to filing an action
under § 1983, even where the “available” remedies appear futile at providing the
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kind of remedy sought. Jernigan, 304 F.3d at 1032. Administrative review by
correction officials is intended “to reduce the quantity and improve the quality of
prisoner suits” by “filter[ing] out some frivolous claims” and, at a minimum,
“clarif[ying] the contours of the controversy.” Porter v. Nussle, 534 U.S. 516,
524-25 (2002). In a § 1983 action, the burden is on an inmate to sufficiently plead
exhaustion of grievance proceedings, which includes supplying supporting
documentation on exhaustion of prison grievance proceedings, or in the absence
of documentation, describing with specificity the administrative proceedings and
the outcome. Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1209-10 (10th
Cir.2003).
With these standards in mind, we turn to the record on appeal. Baldauf
alleges that the district court erred in dismissing his action for failure to exhaust.
First, Baldauf contends that whether he exhausted his administrative remedies is
unclear and requires further inquiry. Aplt. Br. at 3A (citing Steele, 355 F.3d at
1211). Second, he contends the district court’s decision rested on the CDOC’s
erroneous conclusion that some of his grievances were “defaulted.” Id. at 3B.
Third, he contends the district court erred in finding that he had failed to exhaust
when, in fact, the grievance process was unavailable to him due to actual and
threatened adverse actions by the CDOC. Id. at 3B-3C.
The record on appeal is consistent with the findings of the magistrate judge
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as adopted by the district court. Documents from the CDOC Step III Grievance
Officer that accompany Baldauf’s complaint show that he exhausted the grievance
process regarding: (1) television repair charges (letters dated March 26, 2002 and
April 2, 2002); (2) unspecified expunged records (letter dated April 2, 2002); (3)
a confiscated magazine (letter dated May 9, 2002); (4) unspecified antagonism by
Sgt. Bennett (letter dated May 24, 2002); (5) prison conditions including
treatment while on suicide watch (letter dated May 24, 2002); (6) resolution of a
dispute with the mail room over a book received by Baldauf (letter dated June 6,
2002); (7) property inventory dispute over books (letter dated June 6, 2002); (8)
mail overcharges (letter dated July 23, 2002); and (9) Rhonda Corretti being
“ordered to do her job” (letter dated October 10, 2002). Other letters from the
Grievance Officer specifically state that Baldauf has not exhausted his
administrative remedies regarding other claims because he failed to comply with
CDOC grievance procedures (letters dated July 2, 2001, May 22, 2002, June 27,
2002, January 24, 2003, and an undated letter).
We agree with the magistrate judge that it is difficult to associate these
grievances with particular claims in Baldauf’s complaint and it is clear that these
records do not establish that Baldauf has exhausted administrative remedies as to
all claims. However, the magistrate judge and the district court failed to address
Baldauf’s claim seven in his complaint in which he alleges that prison officials
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thwarted his access to the grievance procedures. These allegations are
sufficiently detailed and serious to warrant our reversal of the dismissal and
remand for further consideration.
The PLRA provides that “[n]o 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)
(emphasis added). Other circuits have held that administrative remedies are not
“available” when prison officials refuse to provide prisoners with grievance
forms. See Miller v. Norris, 247 F.3d 736, 738, 740 (8th Cir .2001) (“We believe
that a remedy that prison officials prevent a prisoner from ‘utiliz[ing]’ is not an
‘available’ remedy under § 1997e(a).”), cited with approval in Johnson v.
Wackenhut Corrections Corp., No. 04-6245, 2005 WL 1112089, *2 (10th Cir.
May 11, 2005); Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003) (failure to
exhaust available remedies is excused if there was a failure to provide grievance
forms), cited with approval in Hoover v. West, No. 03-7106, 2004 WL 309338, *3
(10th Cir. Feb. 19, 2004); Gonzales-Liranza v. Naranjo, 2003 WL 22255886, *3
(10th Cir. 2003); Kendall v. Kittles, No. 03 Civ. 628 GEL, 2003 WL 22127135,
*5 (S.D.N.Y. 2003) (“Dismissal for failure to exhaust administrative remedies is
not appropriate where the plaintiff sufficiently alleges that he attempted to pursue
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internal remedies and that prison officials ... refused to provide him with the
means to file a grievance.”); cf. Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th
Cir. 2002) (“[T]he failure to respond to a grievance within the time limits
contained in the grievance policy renders an administrative remedy unavailable.”).
Compare Watley v. Goodman, No. 01-3860, 2002 WL 370015, *1 (6th Cir. Mar.
6, 2002) (dismissal proper because prisoner was refused grievance forms because
he did not follow procedure for requesting such forms and did receive forms when
he followed proper procedure); Jones v. Smith, 266 F.3d 399 (6th Cir. 2001)
(dismissal for failure to exhaust was proper because plaintiff failed to allege that
the prison official who refused to provide a grievance form was the only source of
those forms or that plaintiff made other attempts to obtain a form or file a
grievance without a form). The reasoning in these cases is persuasive: the plain
meaning of “available” indicates that if a prisoner is hindered from utilizing the
grievance procedure, then that grievance procedure is not available.
Claim seven of Baldauf’s complaint alleges that:
• Several grievances Baldauf filed were routed to
Defendant Garoutte rather than the Step III
Grievance officer he intended and several prior
requests “vanished.” ROA, Doc. 3 at 24.
• Baldauf was denied forms and hand-written
grievances that he submitted were not processed
by Defendants Garoutte and Riddle. Id.
• Baldauf wrote to Defendants Wright, Schuh, and
Atherton about the denial of forms but still did not
receive any forms. Id.
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• Baldauf’s mother complained to Atherton and
called Arellano about the denial of grievance
forms, but he still received no forms. Id.
• Defendant Miller refused to supply forms. Id.
Miller withheld forms unless Baldauf provided
documentation of informal resolution attempts
despite the fact that no such requirement existed.
Id.
• Defendant Gillespie refused or ignored all claims
not on forms, despite being told by Baldauf that
forms were unavailable. Id.
• Defendants Wright, Slack, Webb, Breidenbach,
Lehman, Linam, Pruett, Leyba, Graham, Reid,
McCall, and Ortiz failed to answer Baldauf’s kites
or letters. Id.
• Defendant Garoutte did not return a Step II
response for 45 days despite Baldauf’s requests
and Gillespie denied the grievance for lack of a
Step II response. Id.
• Other forms are freely distributed to prisoners
each Sunday, but grievance forms are only
available from case managers who “interrogate”
prisoners before issuing the grievance forms. Id.
Defendants respond that they dispute these allegations, but argue that even
if they are true, they are insufficient to support a constitutional violation. Aplee.
Br. at 28-29. We disagree. Baldauf’s allegations are sufficient to raise an
inference that Baldauf was prevented from utilizing grievance procedures because
he was denied grievance forms and handwritten grievances were not processed.
Contrary to defendants’ assertion, the grievance forms in the record are not
inconsistent with Baldauf’s claim that he was denied forms after November, 2002.
These allegations raise an inference that Baldauf exhausted his “available”
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remedies. We do not decide, however, that Baldauf has, in fact, exhausted his
remedies as is required by § 1997e(a). We reverse the district court’s dismissal
for failure to exhaust and remand for further proceedings on the question of
exhaustion and whether Baldauf was prevented from exhausting his claims.
Because we reverse the district court’s dismissal for failure to exhaust, we
need not address Baldauf’s remaining grounds for appeal regarding his failure to
exhaust.
Motion to Cure Deficiency
Because we reverse and remand for further consideration of the exhaustion
issue, Baldauf’s appeal of the denial of the motion to cure deficiency is moot.
Default Judgment Against Bennet and Garoutte
Baldauf filed an “Application for Default Judgment” against Defendant
Garoutte, ROA, Doc. 90, which the district court denied. Baldauf appeals that
denial and adds Defendant Bennett to the request. Baldauf claims both
defendants were served, but have failed to respond. The record indicates that
neither Bennett nor Garoutte were served because they no longer work for the
CDOC. In order to enter a default judgment, a court must have jurisdiction over
the parties, which requires that the parties be served with process. 10A Wright,
Miller & Kane, Federal Practice & Procedure: Civil 3d § 2682 (1998). Because
these individuals have not been served, the district court had no jurisdiction over
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these parties and was correct in denying default judgment. The denial of the
application for default judgment is affirmed.
Appointment of Interim Class Counsel
Baldauf moved for appointment of interim class counsel pursuant to Fed. R.
Civ. P. 23(g)(2)(A) in order to represent the class of prisoners identified in his
complaint. The magistrate judge declined to treat Baldauf’s action as a class
action and denied Baldauf’s request for counsel.
“We review a district court’s refusal to appoint counsel for an indigent
prisoner in a civil case for an abuse of discretion.” Hill v. SmithKline Beecham
Corp., 393 F.3d 1111, 1115 (10th Cir. 2004). The plaintiff has the burden to
show that appointment of counsel is warranted. Id. We will reverse the
magistrate court’s ruling “[o]nly in those extreme cases where the lack of counsel
results in fundamental unfairness.” Id. Because Baldauf does not challenge the
magistrate court’s refusal to treat his action as a class action, the request pursuant
to Rule 23(g)(2)(A) for interim class counsel seems moot. However, the
magistrate judge construed Baldauf’s request as a general request for counsel, and
we address Baldauf’s appeal from that perspective.
In considering whether to appoint counsel, the magistrate court properly
considered “the merits of the litigant’s claims, the nature of the factual issues
raised in the claims, the litigant’s ability to present his claims, and the complexity
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of the legal issues raised by the claims.” Rucks v. Boergermann, 57 F.3d 978,
979 (10th Cir. 1995) (quotation marks and citation omitted). Lack of counsel in
this case has not resulted in fundamental unfairness, Hill, 393 F.3d at 1115;
Baldauf has adequately represented himself in this action and benefits from the
liberal construction of pleadings and motions afforded pro se litigants, Haines v.
Kerner, 404 U.S. 519, 520-21 (1972). The magistrate court did not abuse its
discretion in denying Baldauf’s motion for counsel. Therefore, we affirm the
denial of the motion for counsel.
Additional Grounds for Dismissal
Defendants offer several grounds for dismissal in addition to failure to
exhaust; all were raised below but were not addressed by the magistrate or district
courts. While we may consider any ground properly raised below as a basis for
affirmance of the district court’s dismissal, see Whitley v. Albers, 475 U.S. 312,
326 (1986); Hutchinson v. Pfeil, 208 F.3d 1180, 1186 (10th Cir. 2000), we
decline to do so here without consideration of defendants’ arguments by the
district court.
We REVERSE the district court’s grant of defendants’ motions to dismiss
for failure to exhaust and REMAND for further proceedings. We AFFIRM the
district court’s denial of Baldauf’s application for default judgment, the denial of
Baldauf’s motion for order to cure deficiency, and the denial of Baldauf’s motion
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for appointment of counsel.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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