Bell v. Ward

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 26, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

JOH N B ELL,

Plaintiff-Appellant, No. 05-7118
v. (E.D. of Okla.)
RON W ARD, Director for the (D.C. No. CV -04-320-P)
Oklahoma Department of Corrections,
M IKE M ULLIN, W arden, M R.
ROLLINS, Acting W arden, Chief of
Security, ROBERT BERRY, Unit
M anager, BRUCE W HITE, Counselor,
SANDY DUNN, Case M anager,
JA M ES WH A LA , Lieutenant, CHAD
M OR GA N, Sargent, VERL HA NC E,
Corporal

Defendants-Appellees.

OR D ER AND JUDGM ENT *

Before TA CH A, Chief Judge, HA RTZ, and TYM KOVICH, Circuit Judges. **

*
This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
 Petitioner-Appellant John Bell, proceeding pro se, 1 appeals the Eastern

District of Oklahoma’s dismissal of his suit under 42 U.S.C. § 1983 for failure to

exhaust administrative remedies. Because Bell has yet to avail himself of the

remedies available within the Oklahoma prison system, we AFFIRM the district

court’s application of the exhaustion requirement.

I. Background

Bell claims that Oklahoma State Penitentiary (OSP) staff ignored his

repeated requests for protection from white and Native American inmates who

had threatened his life. Bell maintains that these refusals resulted in an incident

on December 11, 2002, during which he was stabbed and severely beaten by a

gang of inmates after they yelled “niggers bring your knives” as he was released

into the prison yard for recreation time. Another inmate w as allegedly killed in

the same attack. Bell contends that OSP staff should have searched the inmates

for weapons beforehand and should have responded to the incident more quickly.

Bell asserts that after the incident he began a grievance process pursuant to

O SP regulations by seeking to have his complaints resolved informally. He

contends that these efforts went unanswered by OSP staff and that his subsequent

attempts to appeal OSP’s failure to rule on his grievances were destroyed by

prison staff and not properly documented in the prison grievance log.

1
W e construe Bell’s appellate filings liberally. See Cum mings v. Evans,
161 F.3d 610, 613 (10th Cir. 1998).

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 II. Discussion

Construing Bell’s appellate pleadings liberally, he makes two argum ents:

(1) that he exhausted his administrative remedies, or, alternatively (2) that we

should excuse him from the exhaustion requirement because OSP staff thwarted

the administrative grievance process. W e disagree with both.

Under the Prison Litigation Reform Act (PLRA), a state prisoner bringing a

§ 1983 claim must affirmatively plead and bears the burden to prove that he has

exhausted all available administrative remedies. Simms v. Okla. ex rel. Dep’t of

M ental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999).

In general:

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). “[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 F.3d 1204, 1207 (10th Cir. 2003) (internal quotations

omitted). A prisoner must do more than initiate the administrative grievance

process; he must also complete it. Jernigan v. Stuchell, 304 F.3d 1030, 1032

(10th Cir. 2002). The prisoner, however, may be excused from the exhaustion

requirement where he can demonstrate that adm inistrative remedies are

unavailable or resort to such remedies is futile. Steele, 355 F.3d at 1209. A

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plaintiff seeking to be excused from the exhaustion requirement on these grounds

must do more than make unsupported conclusory allegations of misconduct by

prison officials. Id. at 1209–10.

Bell has not satisfied these standards. First, although he claims he pursued

his grievance informally, he failed to show that he completed the process.

Jernigan, 304 F.3d at 1032. Bell has thus failed to exhaust the administrative

remedies available to him.

Bell has also failed to show futility. In response to Bell’s second

argument— that OSP officials impeded his grievance appeals by destroying them

and falsifying the prison grievance log— the district court, after giving Bell the

opportunity to supplement the record and respond to an affidavit and exhibits

supplied by OSP regarding the grievance process, found no evidence in support of

his allegations that OSP staff deliberately impeded his administrative appeals.

Bell maintains that he has copies of the appeals he attempted to file, but he did

not provide them to the district court in support of his claim. M oreover, OSP

filed an affidavit from the Oklahoma D epartment of Corrections (DOC) official

responsible for grievance appeals stating that there were no administrative appeals

from Bell between January 1, 1998 and November 15, 2004. In light of the

state’s evidence and Bell’s dearth of support for his allegations regarding the

disappearance of his alleged administrative appeals, we cannot say that

administrative remedies were unavailable or futile in Bell’s case.

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 II. Conclusion

For the foregoing reasons, we AFFIRM the district court.

Entered for the Court

Timothy M . Tymkovich
Circuit Judge

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