F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
September 22, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
H EN RY N IC K C OLEM A N ,
Plaintiff - Appellant,
No. 06-1026
v. (D.C. No. 05-CV-01923 ZLW )
(D . Colo.)
CITY AND COU NTY OF DENVER;
JOHN W . HICKENLOOPER, M ayor;
FRED J. OLIVA, Chief,
Defendants - Appellees.
OR D ER AND JUDGM ENT *
Before KELLY, M cKA Y, and LUCERO, Circuit Judges. **
Plaintiff-Appellant Henry Nick Coleman, a Colorado state prisoner
appearing pro se, appeals the district court’s order dismissing his civil rights
complaint, 42 U.S.C. § 1983, without prejudice for failure to exhaust his
administrative remedies. W e exercise jurisdiction pursuant to 28 U.S.C. § 1291,
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
**
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.
and we affirm.
Background
From January 8, 2005, until June 1, 2005, M r. Coleman was an inmate in
Building 8, Level A, of the Denver County Jail. During that time, M r. Coleman
alleges that he was subjected to several constitutional violations: he was denied
an orderly and effective grievance procedure in violation of the Fifth Amendment;
he was denied access to the jailhouse law library in violation of the Sixth
Amendment; he was subjected to serious overcrowding and excessive force by
deputies in violation of the Eighth Amendment; and he was subjected to racial
discrimination at the hands of deputies in violation of the Equal Protection Clause
of the Fourteenth Amendment.
M r. Coleman’s complaint also details one specific instance in which he
claims he was denied his rights. On M arch 4, 2005, the toilets overflowed in his
cell block, and waste water remained on the floor of his cell for two-and-a-half
hours before deputies allowed him to clean it up. That night, M r. Coleman
alleges, the toilets overflowed again. This time, the deputies did not allow the
inmates to clean their cells, instead using fans to dry the area over night. The
next morning, M r. Coleman requested that he be allowed to clean his cell before
breakfast, but this request w as denied; instead, he was forced to eat in his cell
while the fans remained on, allowing airborne fecal matter and other waste to
-2-
contaminate his food. W hen he was finally allowed to clean his cell over an hour
later, M r. Coleman w as not given any disinfectant to use. He alleges that these
unsanitary conditions violated the Eighth Amendment prohibition against cruel
and unusual punishment. See M cBride v. Deer, 240 F.3d 1287, 1292 (10th Cir.
2001).
According to M r. Coleman’s response to the magistrate judge’s order to
show cause, he attempted to file grievances starting in January 2005, but was
informed that prison policy did not permit staff members to give inmates
grievance forms. I R. Doc. 6. After obtaining a form from another inmate, M r.
Coleman filed his first grievance on February 7. It was never answered. M r.
Coleman followed up by sending a note to a jail official, Sergeant Grannum, on
February 21, but again he received no response.
Following the sewer back-up on M arch 5, M r. Coleman again attempted to
file a grievance but was told by jail officials that grievances were not available.
On M arch 15, M r. Coleman w rote an intra-jail letter to the official in charge of
B uilding 8, M ajor Wilson, complaining about the conditions in the building. H e
also sent a letter of complaint to Defendant Oliva on M arch 28, but he received
no response to either letter.
On April 1, M r. Coleman filed his second grievance. This time, he was
told by Deputy Gonzo that a sergeant needed to sign the grievance and then a
copy would be delivered to him. However, M r. Coleman claims that he was never
-3-
given a copy of the grievance and no one ever responded to him.
Following an incident of racial discrimination, M r. Coleman filed his third
grievance on M ay 19. This time, he obtained a signed copy of the grievance,
which he filed with his response to the Order to Show Cause. M r. Coleman
claims that Sergeant Grannum spoke w ith him on M ay 23 regarding his third
grievance: “Sgt. Grannum made it clear to me that racial conduct does exist
within the county system, even toward himself as a black sargent!, [sic] but that
there was not a thing–nothing he could do about the treatment or conditions in
building 8.” Response, at 3.
Shortly after commencing this action, M r. Coleman w as ordered to show
cause w hy the court should not dismiss his action for failure to exhaust
administrative remedies pursuant to 42 U.S.C. § 1997e(a). He responded on
November 17 with the details of his attempts to file grievances. Nevertheless, on
December 13, the district court dismissed his complaint, holding that although
some of the claims contained in the complaint might be exhausted, not all of them
were.
Discussion
Under the Prison Litigation Reform Act (PLRA), “‘[n]o action shall be
brought with respect to prison conditions’ until a prisoner exhausts his available
administrative remedies.” Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1206
-4-
(10th Cir. 2003) (quoting 42 U.S.C. § 1997e(a)). This requirement is “mandatory
for all inmate suits about prison life.” Id., 355 F.3d at 1207 (quoting Porter v.
Nussle, 534 U.S. 516, 524, 532 (2002)). M oreover, it is “a total exhaustion
requirement, and . . . the presence of unexhausted claims in [the plaintiff’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).
A grievance is sufficient for exhaustion purposes if it contains enough detail so as
to allow prison officials to take appropriate measures to solve the problem
internally. Kikumura v. Osagie, –F.3d– , No. 04-1249, 2006 W L 2578805, at
*11-12 (10th Cir. Sept. 8, 2006). The burden of pleading total exhaustion rests
with the plaintiff, who 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.” Steele,
355 F.3d at 1210 (alterations and quotation marks omitted).
W e review de novo the district court’s finding that M r. Coleman failed to
exhaust his administrative remedies. See Jernigan v. Stuchell, 304 F.3d 1030,
1032 (10th Cir. 2002). In so doing, we bear in mind that pro se pleadings are to
be construed liberally. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
At the same time, whether exhaustion occurred is highly dependent upon an
inmate alleging historical facts of which he has knowledge and attaching the
pertinent materials. Id. at 1109.
-5-
At the outset, we note that M r. Coleman’s allegations about the
impediments he encountered in his attempts to file grievances are troubling and
can, in some circumstances, make prison grievances unavailable. See M iller v.
Norris, 247 F.3d 736, 738, 740 (8th Cir. 2001). The policy behind the PLRA–to
“encourage prisoners to make full use of the inmate grievance procedures and
thus give prison officials the first opportunity to resolve prisoner complaints,”
Ross, 365 F.3d at 1190–cannot be accomplished unless correctional officials give
inmates a genuine opportunity to lodge complaints and then address them. A
court’s role in determining whether an inmate’s remedies have been exhausted is
made substantially more difficult when grievances receive no response. Rather
than confronting a full record with concrete evidence about whether the inmate
pursued his claims through the appropriate channels, a court is forced to speculate
about whether the inmate has sufficiently alleged a good-faith effort to utilize the
grievance process.
In this case, M r. Coleman filed three grievances w ith the Denver County
Jail, wrote letters to jail officials and the M ayor of Denver, and even contacted
the U.S. Department of Justice. According to M r. Coleman, the only
comm unication that received a reply was the third grievance, which–read
generously–stated complaints about overcrowding, inadequate grievance
procedures, racism, and unsanitary conditions. I R. Doc. 6 at 16-18. It also
addressed three specific situations–one in which M r. Coleman was locked in his
-6-
cell for 31 hours straight and not allowed to sharpen his pencil, another in which
he found hair in his food, and the toilet back-up described above. Id. at 16-18.
At the bottom of the third grievance form is a handwritten message from a
jail official (presumably Sergeant Grannum , based on the notation that the case
was assigned to him), which reads in full:
M r. Coleman building 8 functions under a schedule which was
standardized under ACA guidelines. You are allowed to grieve
whatever you feel is wrong-doing but unfortunately all procedures
where [sic] properly followed. It is at the Deputies[’] discretion as
to when to let you come out of the living area to sharpen your pencil.
If there was hair in your breakfast you should have notified the
deputy on duty, as for time out of your cell there is a schedule to be
followed which allows each tier to have out of cell time daily. Again
ACA standards. I apologize for the plumbing system. That issue has
been taking up with maintenance.
Id. at 16.
Based on the third grievance and the jail’s response, it appears that the jail
agreed with M r. Coleman concerning the toilet backup problem. W hen a
complaint is resolved in a prisoner’s favor, there is no further possibility of relief,
and he has exhausted his remedies. Ross, 365 F.3d at 1187. Likewise, “the
failure to respond to a grievance . . . renders an administrative remedy
unavailable.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002).
Unfortunately for M r. Coleman, even the most generous reading of his third
grievance and his response to the order to show cause does not convince us that
he has carried his burden in showing that he exhausted all of his claims before
-7-
filing this lawsuit. Although we believe that some of his complaints–for example,
his allegations of inadequate ventilation, excessive noise, and poor lighting–may
be subsumed into his broader allegations of overcrow ded and unsanitary
conditions, his third grievance and his response to the order to show cause make
no mention whatsoever of his claims of excessive force or denial of access to the
jailhouse library. Both of these claims are clearly and conspicuously included in
the complaint. See I R. Doc. 3 at 8 (“Being denied access to the legal library.”),
10 (“Denver Sheriff’s D eputies . . . [committing] countless assaults on the inmate
population and the unrestrained use of ‘Tasers’ for any reason.”).
As noted, the burden rests with M r. Coleman to establish that he exhausted
his administrative remedies with respect to both of these claims either by
“attach[ing] a copy of the applicable administrative dispositions to the complaint,
or, in the absence of written documentation, describ[ing] with specificity the
administrative proceeding and its outcome.” Steele, 355 F.3d at 1210 (alterations
and quotation marks omitted). This he has failed to do. The law is clear that “the
presence of unexhausted claims in [the plaintiff’s] complaint require[s] the
district court to dismiss his action in its entirety without prejudice.” Ross, 365
F.3d at 1189. Since M r. Coleman has not established that he exhausted all of his
claims, the district court’s dismissal of his lawsuit without prejudice must be
AFFIRM ED. M r. Coleman’s motion to proceed without prepayment of the
appellate filing fee is GRANTED and he is reminded of his continuing obligation
-8-
to make partial payments until the entire fee has been paid.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-9-