F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 21, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JO SEPH PH ILLIPS-B EY ,
Plaintiff-Appellant, No. 05-7107
v. (E.D. Oklahoma)
B OBBY BO O N E, M IK E M U LLIN, (D.C. No. CIV-04-348-S)
HA RRY REA DING , CH ESTER
M ASON, TIM BUTLER, EM M A
W A T TS, and LEE M A N N ,
Defendants-Appellees.
OR D ER AND JUDGM ENT *
Before H E N RY, BR ISC OE, and O’BRIEN, 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 F ED . R. A PP . P. 34( A )(2); 10 TH C IR . 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This order and judgment is not binding precedent, except under the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
may be cited under the terms and conditions of 10th Cir. R. 36.3.
Joseph R. Phillips-Bey, an Oklahoma state prisoner proceeding pro se,
appeals the district court’s dismissal of his complaint, which alleged under 42
U.S.C. § 1983 that the defendant prison officials violated his constitutional rights
by requiring him to move from a medium-security to a maximum-security facility,
thereby allegedly endangering his life. W e exercise jurisdiction pursuant to 28
U.S.C. § 1291, and affirm the district court’s dismissal without prejudice for
failure to exhaust administrative remedies, as required by 42 U.S.C. § 1997e(a).
I. BACKGROUND
On M ay 25, 2003, prison officials recommended that M r. Phillips-Bey be
transferred from a maximum-security facility to a medium-security facility. O n
October 24, 2003, the w arden of the medium-security facility requested that M r.
Phillips-Bey be transferred back to the maximum-security facility because he had
become “no longer manageable at medium security due to his attitude tow ard
authority.” Rec. doc. 25, attach. 15, at 1 (Special Report of Review of Factual
Basis of Claims, filed Jan. 10, 2005). The transfer back to the maximum-security
facility occurred on January 6, 2004. M r. Phillips-Bey alleges that as a result of
this transfer, he has been “forced to cell with violent inmates against his will, and
[the defendants have] set the Plaintiff up to be harmed intentionally.” Id. doc. 2,
at 2 (Compl., filed Aug. 5, 2004). W ith his complaint, he submitted documents
that allegedly show how he exhausted his administrative remedies.
A magistrate judge directed the Oklahoma D epartment of Corrections
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(“ODOC”) to provide a written report reviewing M r. Phillips-Bey’s complaint.
Id. doc. 22 (Order Requiring Special Report, filed Nov. 10, 2004). After
receiving the Special Report, which detailed the steps M r. Phillips-Bey had taken
to exhaust his administrative remedies, the district court dismissed the complaint
for failure to exhaust administrative remedies pursuant to 42 U.S.C. 1997e(a),
noting that he had “failed to file an appeal on any of his grievances.” Id. doc. 42,
at 6 (D ist. Ct. Order, dated Sep. 19, 2005). This appeal followed.
II. D ISC USSIO N
W e review de novo a district court’s dismissal of a complaint for failure to
exhaust administrative remedies. Patel v. Fleming, 415 F.3d 1105, 1108 (10th
Cir. 2005). W e accept the allegations in the complaint as true, and make all
reasonable factual inferences in M r. Phillips-Bey’s favor. M artinez v. Garden,
430 F.3d 1302, 1304 (10th Cir. 2005). Additionally, we must construe his
arguments liberally because he is pro se. Haines v. Kerner, 404 U.S. 519, 520
(1972).
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action
shall be brought with respect to prison conditions under section 1983 of this title .
. . until such administrative remedies as are available are exhausted.” 42 U.S.C. §
1997e(a). The prisoner must exhaust all administrative remedies available even if
administrative procedures “would appear to be futile at providing the kind of
remedy sought.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002).
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“An inmate who begins the grievance process but does not complete it is barred
from pursuing a § 1983 claim under PLRA for failure to exhaust his
administrative remedies.” Id. at 1032.
The O DOC has outlined a multi-step process inmates must use to exhaust
their administrative remedies. See ODOC Policy OP-090124. A prisoner must
first file a Request to Staff within seven days of the incident. Id. OP-090124(IV).
If the prison’s response is unsatisfactory or if the prisoner does not receive a
response within thirty days, the prisoner must file a Grievance Report Form. Id.
OP-090124(IV )(B)(5); OP-090124(V). Finally, a prisoner may file an appeal to
the administrative review authority. Id. OP-090124(VII)(B). “The ruling of the
administrative review authority . . . will conclude the internal administrative
remedy available to the inmate/offender.” Id. OP-090124(V II)(D).
The record on appeal contains multiple copies of various Requests to Staff
and Grievance Report Forms, but it does not contain a single documented appeal
to the administrative review authority. In his brief on appeal, M r. Phillips-Bey
attempts to explain this, contending that after he received responses to his
Grievance Report Forms, “he forward[ed] the grievances (with the answered
request[s] to staff) to Director’s Office.” Aplt’s Br. at 4. However, the
“Director’s Office refus[ed] to respond.” Id.
“To satisfy the PLRA’s exhaustion requirement, a prisoner must do more
than allege that he has exhausted his administrative remedies. To [show
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exhaustion], a prisoner must . . . attach a copy of the applicable administrative
dispositions to the complaint, or, in the absence of written documentation,
describe with specificity the administrative proceeding and its outcome.” Simmat
v. U.S. Bureau of Prisons, 413 F.3d 1225, 1237 (10th Cir. 2005) (internal
quotation marks, citation, and alteration omitted). M r. Phillips-Bey’s conclusory
allegations are simply insufficient under Simmat. M r. Phillips-B ey has failed to
provide any written documentation of his appeals, and additionally has not
described the administrative appeals proceedings with the required level of
specificity. Assuming that the Director’s Office is an appropriate place to send a
final appeal, M r. Phillips-Bey fails to explain what steps he took to follow up on
his appeals with the Director’s Office, whether the alleged refusal to respond was
accompanied by any explanation, or any other details of his interaction that would
enable us to decide whether M r. Phillips-Bey had diligently pursued the
administrative procedures available to him, as required by the PLRA.
III. C ON CLU SIO N
Because we conclude that M r. Phillips-B ey has failed to exhaust all
administrative remedies available to him, we A FFIRM the district court’s
dismissal of his claims pursuant to 42 U.S.C. § 1997e(a). W e remind M r.
Phillips-Bey of his continuing obligation to make partial payments on his filing
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fee until the entire fee has been paid.
Entered for the Court,
Robert H. Henry
Circuit Judge
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