Van Houten v. Marlett

FILED
United States Court of Appeals
Tenth Circuit

May 14, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

JAMES E. VAN HOUTEN,

Plaintiff-Appellant,
v. No. 09-3009
CARRIE MARLETT, (D.C. No. 06-CV-3308-SAC)
(D. Kan.)
Defendant-Appellee.

ORDER AND JUDGMENT *

Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,

therefore, submitted without oral argument.

Plaintiff-Appellant James E. Van Houten (“Van Houten”), a Kansas state

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
court prisoner appearing pro se, 1 appeals the district court’s dismissal of his 42

U.S.C. § 1983 civil rights action. The district court dismissed this action for

failure to timely exhaust administrative remedies. We have jurisdiction pursuant

to 28 U.S.C. § 1291 and affirm.

Van Houten alleges his Eighth and Fourteenth Amendment constitutional

rights were violated when Defendant-Appellee Carrie Marlett, 2 an employee of

the correctional facility that housed Van Houten, placed him in 24-hour lockdown

from April 27, 2006 to May 27, 2006. Van Houten filed a grievance regarding the

24-hour lockdown on September 27, 2006, four months after his lockdown ended.

A response from Van Houten’s unit manager stated that his grievance was

untimely, pursuant to Kansas Administrative Regulation § 44-15-101b, which

states that grievances “shall be filed within 15 days from the date of the discovery

of the event giving rise to the grievance.”

Van Houten then sought review of his grievance by the correctional

facility’s warden, arguing that his grievance was timely because section 44-15-

101b also states: “No grievance, regardless of time of discovery, shall be filed

1
As he is proceeding pro se, we have construed Van Houten’s pleadings
liberally. Cannon v. Mullin, 383 F.3d 1152, 1160 (10th Cir. 2004).
2
Van Houten’s case originally named an additional defendant: Debbie
Bratton, the deputy warden at the correctional facility that housed Van Houten.
The district court dismissed the complaint against Bratton, and Van Houten has
not appealed her dismissal.

2
later than one year after the event.” The warden concurred with the response of

the unit manager, and then Van Houten appealed to the Secretary of Corrections.

The Secretary of Corrections found that the response of the staff was appropriate.

The district court originally dismissed Van Houten’s case for failure to

exhaust his administrative remedies. On appeal, we vacated that order and

remanded in light of Jones v. Bock, 549 U.S. 199, 212 (2007), which held that

exhaustion of administrative remedies was no longer a pleading requirement, but

an affirmative defense. Van Houten v. Marlett, 247 Fed. App’x 122, 2007 WL

2561319 (10th Cir. Sept. 5, 2007) (unpublished).

On remand, the district court, upon consideration of Marlett’s motion to

dismiss, concluded that Van Houten’s grievance about the alleged offensive

conduct was untimely. The district court then dismissed Van Houten’s case with

prejudice because he failed to exhaust his administrative remedies. Van Houten

appeals this dismissal.

II.

We review de novo the district court’s finding of failure to exhaust

administrative remedies. Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.

2002). In reviewing a dismissal, we must accept as true all well-pleaded facts, as

distinguished from conclusory allegations, and those facts must be viewed in the

light most favorable to the non-moving party. Shero v. City of Grove, Okla., 510

F.3d 1196, 1200 (10th Cir. 2007).

3
The Prison Litigation Reform Act requires an inmate to exhaust available

administrative remedies prior to filing an action with respect to prison conditions

under § 1983. 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). When a prisoner’s claim

has been rejected by prison authorities as untimely, that claim “should be

dismissed from the plaintiff’s complaint with prejudice.” Kikumura v. Osagie,

461 F.3d 1269, 1290 (10th Cir. 2006), abrogated on other grounds by Bell Atl.

Corp. v. Twombly, 550 U.S. 544 (2007).

As a Kansas state prisoner, Van Houten had to pursue his claims as

required by the governing Kansas Administrative Regulations:

Grievances shall be filed within 15 days from the date of
the discovery of the event giving rise to the grievance,
excluding Saturdays, Sundays and holidays. No grievance,
regardless of time of discovery, shall be filed later than
one year after the event. Any grievance filed later than
these deadlines may be returned to the inmate without
investigation.

Kan. Admin. Regs. § 44-15-101b. Section 44-15-101b requires grievances to be

filed “within 15 days from the date of discovery of the event.” Van Houten’s

argument that the same regulation gives him one year to file his grievance is

based on a mis-reading of Section 44-15-101b. Under the regulation, all

grievances must be filed within 15 days of discovering the event. In the rare case

4
where an event is not discovered for more than a year after it occurred, the filing

of a grievance is time-barred, even if it is filed within 15 days of discovering the

event. Thus, the sentence permitting filing up to “one year after the event” is an

additional limit on the filing time, not an extension.

Van Houten’s complaint and its attachments show that he failed to timely

exhaust his administrative remedies because he filed his grievance more than 15

days after his 24-hour lockdown ended. The district court was correct to so hold.

We therefore AFFIRM the district court’s dismissal with prejudice of Van

Houten’s complaint.

Van Houten’s “Motion to Present Cooraberting [sic] Evidence,” “Motion

for Court Ordered Transfer,” “Motion to Present,” and “Motion to Weight Out

Facts and Disregard Opinions from Appealing Arguements [sic]” are DENIED.

Van Houten is reminded of his obligation to continue making partial payments on

his filing fee until the fee has been paid in full.

AFFIRMED.

Entered for the Court

Mary Beck Briscoe
Circuit Judge