F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 31, 2006
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
RICHARD D. FRY,
Plaintiff-Appellant,
v. No. 05-1179
(D.C. No. 99-MK-2388 (CBS))
DIANE AL-ABDULJALIL, M.D.; (D. Colo.)
CAPTAIN ROD BUXMAN;
SERGEANT ROCKY SMITH; and
SERGEANT DAVE BELL.
Defendants-Appellees.
ORDER AND JUDGMENT *
Before McCONNELL, ANDERSON, and BALDOCK, 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.
*
This order and judgment is not binding precedent, except under the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.
Richard D. Fry appeals the district court’s grant of summary judgment in
favor of appellees on his 42 U.S.C. § 1983 claims. He also appeals the district
court’s denial of his motion for reconsideration. We have jurisdiction under
28 U.S.C. § 1291, and we AFFIRM.
I
Mr. Fry is legally blind. Upon his arrival at Fremont Correctional Facility
in May 1997, he requested assignment to a single-occupancy cell because of his
impairment. His request was denied, and Mr. Fry was assigned to a double-
occupancy cell with Spencer Peterson as his cell mate. Mr. Fry contends that
Mr. Peterson engaged in a campaign of harassment against him. Mr. Fry alleges
that he repeatedly contacted defendants Buxman, Smith and Bell to complain
about Mr. Peterson’s harassment, and to request a single-occupancy cell. His
requests were denied.
In December 1997, Mr. Fry and Mr. Peterson were involved in a physical
altercation, which caused injuries to Mr. Fry (“the Peterson incident”). Mr. Fry
was housed in another facility for medical treatment after the Peterson incident,
but returned to Fremont in February 1998. At that time, he was housed in a cell
with Mike Dewine, despite again requesting that he be assigned to a single-
occupancy cell. He alleges that he became ill with stomach problems, and that
Mr. Dewine caused these problems by placing foreign substances in his drinks
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(“the Dewine incident”). In November 1998, defendant Al-Abduljalil
recommended that Mr. Fry be given a single-occupancy cell.
In December 1999, Mr. Fry filed a complaint against appellees and several
other defendants, alleging that they failed to protect him from harm resulting in
injury during the Peterson incident and the Dewine incident. After amending his
complaint several times, two Eighth Amendment claims remained pending against
the parties to this appeal: 1) that Buxman, Smith, and Bell were deliberately
indifferent and grossly negligent by failing to assure Mr. Fry’s safety and address
his serious medical needs; and 2) that Dr. Al-Abduljalil acted with deliberate
indifference to Mr. Fry’s serious medical needs and health and safety when she
denied Mr. Fry’s request for a single-occupancy cell.
The district court granted summary judgment in favor of appellees based on
its determination that Mr. Fry failed to exhaust his administrative remedies with
respect to the Peterson incident, and that he failed to establish that he suffered
any physical injury as a result of the Dewine incident. Mr. Fry filed a motion for
reconsideration of the district court’s order granting summary judgment, which
the district court denied.
II
We review de novo the district court’s grant of summary judgment in favor
of appellees, applying the same standards as the district court. See Orr v. City of
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Albuquerque, 417 F.3d 1144, 1148 (10th Cir. 2005). We review for abuse of
discretion the district court’s denial of the motion for reconsideration. See
Matosantos Commercial Corp. v. Applebee’s Int’l, Inc., 245 F.3d 1203, 1213
(10th Cir. 2001).
Exhaustion of Administrative Remedies
An inmate must exhaust all available administrative remedies before filing
suit. 42 U.S.C. § 1997e(a). The exhaustion requirement applies to all suits
regarding prison life, whether they challenge general circumstances or particular
episodes. See Porter v. Nussle, 534 U.S. 516, 532 (2002). The burden of
demonstrating exhaustion is on the plaintiff. See Steele v. Fed. Bureau of
Prisons, 355 F.3d 1204, 1209-10 (10th Cir. 2003).
The district court determined that Mr. Fry had never filed a grievance
concerning his request for a single-occupancy cell, or regarding the injuries he
suffered after the Peterson incident. Mr. Fry essentially argues that he did not
have to exhaust any administrative remedies with respect to his request for a
single-occupancy cell because the grievance procedure does not apply to those
kinds of “classification” issues. Aplt. Br. at 18. On appeal, Mr. Fry does not
provide any record support for this assertion. Similarly, in the district court,
Mr. Fry did not provide a definition of classification or explain how his request
constituted a classification issue. In contrast, the appellees did provide the
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following definitions from the Department of Corrections administrative
regulation: 1) “Classification” is “[t]he judgmental and discretionary process
whereby an inmate is regularly reviewed to determine the level of custody and
facility assignment,” and 2) “Custody level” is “[t]he degree of supervision
required for each inmate utilizing the terms of minimum, minimum restricted,
medium, close, and administrative segregation.” Aplt. App., Vol. II at 338. As
the district court correctly noted, “nothing in the definition of ‘classification’
suggests that the decision to assign an inmate to a single- or double-occupancy
cell falls within its definition.” Id. at 430.
The district court also noted that, even if Mr. Fry’s request was a
classification issue, the grievance procedure states that there is an appeal process
available with regard to classification issues, but Mr. Fry did not demonstrate that
he exhausted that process. In the district court, Mr. Fry simply argued that he did
not need to exhaust his administrative remedies because the grievance procedure
was not applicable to classification issues. Mr. Fry now argues for the first time
on appeal that he did exhaust the separate classification appeal process by making
verbal requests that he be reassigned to a single-occupancy cell. Again, he does
not offer any record support for his argument. Aplt. Br. at 18-19. Moreover, he
did not make this argument before the district court. Accordingly, this argument
is waived. See Smith v. Rogers Galvanizing Co., 128 F.3d 1380, 1385-86 (10th
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Cir. 1997) (“Generally, we will not consider an issue that was not raised and
resolved in the trial court.”)
Finally, Mr. Fry asserts that he was unable to file a grievance because he is
legally blind and therefore the administrative remedies were not available to him.
See 42 U.S.C. 1997e(a) (“No action shall be brought . . . until such
administrative remedies as are available are exhausted.” (emphasis added)).
Mr. Fry fails to explain, however, how he was able to file at least two other
grievances during this same period of time. He filed one grievance after the
Peterson incident claiming that some of his personal items were missing when he
returned from medical treatment, and he filed another grievance related to the
Dewine incident. Because Mr. Fry was able to use the grievance procedure on
other occasions, he has not demonstrated that the administrative remedies were
not available to him.
Physical Injury Requirement
Mr. Fry did file a grievance with respect to the Dewine incident. The
district court determined, however, that Mr. Fry had not satisfied the physical
injury requirement in 42 U.S.C. § 1997e(e). That section states: “No Federal
civil action may be brought by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury suffered while in custody
without a prior showing of physical injury.” Id. (emphasis added). Mr. Fry
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asserts that he did make a showing of physical injury. He contends that he
submitted an affidavit in which he stated that he suffered stomach problems due
to chemicals being placed in his drink by Mr. Dewine. He also asserts that an
unidentified doctor at Fremont verbally confirmed his self-diagnosis.
In response to summary judgment, Mr. Fry made the following statement:
“Mr. Fry became ill with stomach problems, and believes it is a result of
Mr. Dewine placing cleaning solutions in Mr. Fry’s drinks. The doctor verbally
confirmed Mr. Fry’s suspicions. Please see Exhibit ‘A’, ¶ 12.” Aplt. App.,
Vol. II at 249. Exhibit A is Mr. Fry’s affidavit, which states: “I was going to the
doctor for stomach problems, and believed that Mr. Dewine was putting cleaning
solutions in my drinks. The doctor confirmed my belief.” Id. at 259.
Mr. Fry’s personal conclusions regarding his stomach problems are insufficient to
demonstrate a triable issue of fact for the purpose of overcoming summary
judgment. Fitzgerald v. Corrections Corp. of America, 403 F.3d 1134, 1143
(10th Cir. 2005); see also Kayser v. Caspari, 16 F.3d 280, 281 (8th Cir. 1994)
(stating that an inmate’s self-diagnosis alone cannot establish that he suffered
from kidney stones). Moreover, the statements that a doctor confirmed the basis
for his stomach problems directly contradicts the following testimony from his
deposition:
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Q. Okay. Did any physician or medical professional diagnose
you as having any injury as a result of ingesting the cleaning
fluids?
A. It was making me sick. I was vomiting. I wasn’t diagnosed,
but I was sick, okay. It didn’t do me no good I know that.
Q. I understand you were sick, but did anybody ever pinpoint the
cause of that sickness to your knowledge?
A. Well, no. When the P.A. told me about the single cell order, in
my own head I thought, well, I’m getting away from this guy
so I didn’t push it.
Aplt. App, Vol. I at 126 (emphasis added).
Mr. Fry failed to come forward with evidence sufficient to demonstrate a
triable issue of fact as to whether he actually suffered any injury traceable to
defendants’ conduct.
Motion for Reconsideration
Mr. Fry filed a motion for reconsideration with the district court
challenging the district court’s determination that he had not exhausted his
administrative remedies. In his motion for reconsideration, he argued that the
written grievance procedure was not available to him because of his visual
impairment. The district court denied the motion for reconsideration because this
argument existed at the time of his response to summary judgment and could have
been presented at that time. Moreover, the district court noted that Mr. Fry had
invoked the written grievance procedure at least twice, rebutting his assertion that
the procedure was not available to him. As discussed supra, we agree that
Mr. Fry did not demonstrate that the grievance procedure was unavailable to him.
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The district court did not abuse its discretion in denying the motion for
reconsideration.
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The judgment of the district court is AFFIRMED.
Entered for the Court
Michael W. McConnell
Circuit Judge
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