F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
November 6, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
A LV IN A . PA U LIN O ,
Plaintiff - Appellant,
No. 06-3285
vs. (D.C. No. 05-CV-3348-SAC)
(D . Kan.)
(FN U) (LNU), one unknown deputy of
the United States M arshal Service, in
his individual capacity; W ALTER
BRADLEY, in his individual capacity;
C ORREC TIO N S C OR PO RA TION OF
AM ERICA ; UN ITED STATES
M AR SHA L SERVICE,
Defendant - Appellee.
OR D ER AND JUDGM ENT *
Before KELLY, M cKA Y, and LUCERO, Circuit Judges. **
Alvin A. Paulino, a federal inmate, appearing pro se, appeals the district
court’s dismissal w ithout prejudice of his claims brought against an unknown
*
This order and judgment is not binding precedent, except under the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.
deputy marshal of the U nited States M arshal Service w ith the first name G ary
(“Deputy M arshal Gary”), United States M arshal W alter Bradley (“M arshal
Bradley”), the United States M arshal Service (“USM S”), and Corrections
Corporation of America (“CCA”) pursuant to 42 U.S.C. § 1983, 42 U.S.C. §
1985(3), and Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388
(1971). Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.
M r. Paulino, in his complaint, 1 makes numerous allegations relating to his
temporary incarceration at CCA’s Leavenworth, Kansas facility while he was
awaiting transfer to a Federal Bureau of Prisons facility. 2 M r. Paulino alleges that
the events underlying his complaint occurred on or after N ovember 10, 2003.
Specifically, M r. Paulino brought suit against Deputy M arshal Gary and M arshal
Bradley, in their individual capacities, pursuant to Bivens and § 1983, alleging,
inter alia, that they intentionally subjected him to cruel and unusual punishment
in violation of the Eighth Amendment when they decided to place him on “suicide
watch.” He claims that because of this decision he was forced to spend four days
and nights on a cold, damp floor and was not allowed to communicate w ith his
family. M r. Paulino further alleges that Deputy M arshal Gary and M arshal
1
M r. Paulino filed his original complaint in this case on August 24, 2005.
He also filed a an amended complaint on January 23, 2005, and an amended and
supplemented complaint on June 21, 2005.
2
M r. Paulino is currently housed at a federal facility located in Forrest
City, Arkansas. He is serving a 57 month sentence for possession of child
pornography.
-2-
Bradley’s decisions resulted in him being: (1) placed in solitary confinement for
an extended period of time without cause or explanation; (2) denied meals
numerous times; (3) denied required medical and psychological examinations; and
(4) denied a hearing regarding his placement in solitary confinement and on
suicide watch. M oreover, according to M r. Paulino, Deputy M arshal Gary made
several intentionally false statements about M r. Paulino that caused his cruel and
unusual punishment.
M r. Paulino also brought suit against USM S and CCA pursuant to 42
U.S.C. § 1985(3), alleging the two organizations conspired to deprive him of his
constitutional rights. M r. Paulino asserts that USM S and CCA conspired to
deprive him of “equal protection of the law, and . . . equal privileges and
immunities under the law.” R. Doc. 9 at 12.
M r. Paulino claims that the defendants’ actions caused him to develop a
stomach ulcer, to develop an aggravated heart condition, and to suffer mental and
emotional distress. Accordingly, he seeks compensatory damages, punitive
damages, and injunctive and declaratory relief.
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). Failure to exhaust administrative remedies as required by 42 U.S.C. §
1997e(a) will result in dismissal of the case. Booth v. Churner, 532 U.S. 731, 741
(2001). The statute provides that “[n]o action shall be brought with respect to
-3-
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).
This exhaustion requirement “applies to all inmate suits about prison life, whether
they involve general circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532
(2002).
“A litigant’s failure to raise issues during an administrative appeal can
constitute a failure to exhaust administrative remedies.” Kikumura v. Hurley, 242
F.3d 950, 956 (10th Cir.2001). W e recently explained that “a grievance satisfies
§ 1997e(a)’s exhaustion requirement so long as it provides prison officials w ith
enough information to investigate and address the inmate’s complaint internally.”
Kikumura v. Osagie, 461 F.3d 1269, 1285 (10th Cir. 2006). M oreover, we have
held “that the presence of unexhausted claims in [a prisoner’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). 3
In his only grievance to prison officials, dated January 30, 2004, M r.
Paulino claimed a general deprivation of his constitutional rights on November
3
This remains the case even where, as here, some of the unexhausted
claims are brought against a private prison and/or its employees. See Beaudry v.
Corr. Corp. of Am., 331 F.3d 1164, 1165, 1167 (10th Cir. 2003) (dismissing a §
1983 action against a private prison and several of its employees for failure to
exhaust).
-4-
10, 2003, when “a deputy of the United States M arshal Service” deliberately
violated his civil rights in retaliation for his crime and for “speaking the words I
did to the U.S. District Court who sentenced me.” M r. Paulino further alleged
that the retaliation included “punitive placement” on suicide watch for
approximately thirty days. These allegations, as the district court noted, only
implicate D eputy M arshal Gary and did not put prison officials on notice as to
any of the other claims later brought against M arshal Bradley.
The district court pointed out the exhaustion problem, as well as many
other deficiencies in the complaint and allowed M r. Paulino leave to amend to
demonstrate exhaustion of administrative remedies and cure the deficiencies. For
substantially the reasons set forth by the district court after it examined the
amended complaint, we agree that the action must be dismissed for failure to
exhaust. R. Doc. 16 at 1-4. Although we do not disagree with the balance of the
district court’s reasoning concerning whether the complaint states a claim, we do
not address those issues given that the judgm ent in this case plainly states it is a
dismissal without prejudice. R. Doc. 17; see Semtek Intern. Inc. v. Lockheed
M artin Corp., 531 U.S. 497, 505 (2001) (“[A]n ‘adjudication upon the merits’ is
the opposite of a ‘dismissal without prejudice.’”).
W e note that in an attempt to avoid the PLRA’s exhaustion requirement,
M r. Paulino cites to Garrett v. Hawk, 127 F.3d 1263 (10th Cir. 1997), for the
proposition that “prisoners who file Bivens claims for monetary damages against
-5-
prison officials are not required to exhaust administrative remedies under the
PLRA . . . .” Aplt. Br. at 2. M r. Paulino is correct regarding Garrett’s holding;
however, Booth overruled Garrett over five years ago and we have since remarked
that “[e]ven where the ‘available’ remedies would appear to be futile at providing
the kind of remedy sought, the prisoner must exhaust the administrative remedies
available.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (citing
Booth, 532 U.S. at 740). As a result, M r. Paulino was not excused from fully
exhausting.
AFFIRM ED. W e remind M r. Paulino of his continuing obligation to pay
his filing fee in partial payments.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-6-