FILED
United States Court of Appeals
Tenth Circuit
June 17, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
BILLY MONROE HICKS,
Plaintiff-Appellant,
v. No. 08-7099
(D.C. No. 6:07-CV-00278-RAW-SPS)
JUSTIN JONES, DOC Director; (E.D. Okla.)
MARTY SIRMONS, OSP Warden;
MIKE PRUITT, OSP Unit Manager;
BETSY GREENWAY, OSP Case
Manager,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before O’BRIEN, Circuit Judge, BRORBY, Senior Circuit Judge, and
GORSUCH, Circuit Judge.
Billy Monroe Hicks, an Oklahoma state prisoner proceeding pro se, appeals
the dismissal of his civil rights action for failing to exhaust his administrative
remedies. See 42 U.S.C. § 1997e(a). He also challenges the denial of a
*
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 Fed. R. App. P. 34(a)(2); 10th Cir. 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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
preliminary injunction or temporary restraining order (TRO) prohibiting
defendants from transferring him out of protective custody. We affirm the district
court’s judgment.
I
This case stems from an altercation between Hicks and a cellmate.
According to the complaint, Hicks requested to be transferred to a different cell
after his cellmate exhibited troubling behavior. When the cellmate learned of this
transfer request, he threatened Hicks with a razor-blade and stomped on his hand.
Subsequent x-rays revealed that Hicks suffered a broken hand as a result of the
incident and required surgery. Despite the surgery, however, Hicks maintains he
has been unable to regain full use of his hand.
After speaking with prison staff-members, Hicks submitted an informal
Request to Staff (RTS) on October 23, 2006. In his RTS, he alleged prison
officials knew of his cellmate’s propensity for violence but nevertheless placed
him in the same cell with deliberate indifference for his safety. When more than
thirty days passed without a response, however, Hicks filed a grievance with the
Reviewing Authority complaining of the staff’s failure to respond. When he
again received no response, he resubmitted his grievance, and this time was told
the issue had been resolved because he was already separated from his cellmate.
R., Vol. 1 at 121. Hicks appealed to the Administrative Review Authority (ARA),
which returned the grievance to the Reviewing Authority for further review. Id.
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at 317-18. The Reviewing Authority, in turn, returned the grievance to the
appropriate staff member for an amended response. Id. at 351. Acting on that
direction, Defendant Mike Pruitt, Hicks’ unit manager, replied, “You were in fact
separated from [your cellmate] after your allegation that you were in danger.” Id.
at 314.
Dissatisfied with this response, Hicks appealed to the ARA. His appeal
was returned unanswered, however, because it raised more than one issue. Hicks
made the necessary revisions and resubmitted his appeal, but it was again
returned unanswered as the matter was the subject of pending litigation. Hicks
disputed the ARA’s assessment that his grievance was the subject of ongoing
litigation, but by then, the time for submitting his appeal had expired, and it was
once again returned unanswered. Undeterred, Hicks filed his appeal a fourth
time, only to have it returned unanswered for the reason previously provided. He
thereafter sought permission to file his appeal out of time, but his request was
denied. Hicks then brought his case to the district court.
In his complaint, Hicks claimed that defendants violated the Eighth and
Fourteenth Amendments by being deliberately indifferent to his need for adequate
protection. He later sought a preliminary injunction or TRO to enjoin defendants
from transferring him out of protective custody. On defendants’ motion, the court
dismissed the complaint without prejudice for failure to exhaust administrative
remedies, and denied a preliminary injunction or TRO as unrelated to the
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deliberate indifference claim alleged in the complaint. Now on appeal, Hicks
insists he exhausted his remedies, at least to the extent that prison officials would
allow, and he is entitled to a preliminary injunction or TRO.
II
We review de novo the district court’s dismissal for failure to exhaust
administrative remedies. Patel v. Fleming, 415 F.3d 1105, 1108 (10th Cir. 2005).
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, 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). A prisoner must exhaust all available administrative
remedies, even if the administrative procedures “appear to be futile at providing
the kind of remedy sought.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.
2002). “An inmate who begins the grievance process but does not complete it is
barred from pursuing a § 1983 claim under the PLRA for failure to exhaust his
administrative remedies.” Id. As a corollary, an inmate who fails to meet the
time limit for filing a grievance also fails to exhaust his administrative remedies.
Id. at 1033.
The Oklahoma Department of Corrections (DOC) requires aggrieved
inmates to timely and properly complete four steps to exhaust their remedies.
First, an inmate must try to resolve his complaint by speaking to an appropriate
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staff member. R., Vol. 1 at 53, § IV(A). If the problem is not resolved verbally,
the inmate must proceed to the second step and submit an informal RTS. Id.,
§ IV(B). If dissatisfied with the response to the RTS, an inmate must file a
grievance with the Reviewing Authority to satisfy the third step of the
administrative process. Id. at 54, § V(A). And at the fourth step, an inmate
wishing to challenge the Reviewing Authority’s response must file an appeal with
the ARA. Id. at 58, § VII(B). Only after obtaining a final ruling from the ARA
has an inmate exhausted the Oklahoma prison grievance process. Id. at 59,
§ VII(D)(1).
The record clearly shows Hicks never completed the fourth step of the
process. His initial appeal concerned only the lack of a response from staff, while
his other appeals were all returned unanswered for various procedural errors.
Hicks contends these errors were merely a pretext to “[a]brogate [his]
constitutional rights,” Aplt. Br. at 10, but this contention ignores – and does not
excuse – his failure to follow the applicable procedural rules. To properly
exhaust, “prisoners must ‘complete the administrative review process in
accordance with the applicable procedural rules.’” Jones v. Bock, 549 U.S. 199,
218 (2007) (quoting Woodford v. Ngo, 548 U.S. 81, 88 (2006)). Hicks may not
violate these rules until the time for pursuing his remedies has expired and then
claim exhaustion by default. See Jernigan, 304 F.3d at 1033.
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Nevertheless, Hicks claims a judgment in his state mandamus action proves
the ARA improperly rejected one of his appeals as the subject of pending
litigation. In Hicks v. Oklahoma, No. 104,650 (Okla. Civ. App. Apr. 13, 2009)
(unpublished), Hicks challenged the dismissal of his mandamus action brought to
compel the DOC to rule on several grievances, including the one at issue here.
The Oklahoma Court of Civil Appeals could not determine whether Hicks had
exhausted his remedies for this grievance, so it remanded in part for a finding on
exhaustion. Id. at 11-12. We fail to see how this disposition shows the ARA
improperly rejected Hicks’ appeal. If nothing else, the disposition demonstrates
the grievance was, in fact, the subject of pending litigation. Under these
circumstances, the district court did not err in dismissing the complaint without
prejudice for failure to exhaust.
The district court did not abuse its discretion in denying a preliminary
injunction or TRO. See Wilderness Workshop v. United States Bureau of Land
Mgmt., 531 F.3d 1220, 1223 (10th Cir. 2008) (reviewing denial of preliminary
injunction for abuse of discretion); Duvall v. Keating, 162 F.3d 1058, 1062
(10th Cir. 1998) (applying the same standard to the denial of a TRO and noting
that such rulings are not generally appealable absent irreparable harm). “A
preliminary injunction is . . . appropriate to grant intermediate relief of the same
character as that which may be granted finally.” De Beers Consol. Mines v.
United States, 325 U.S. 212, 220 (1945). Hicks, however, sought relief on “a
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matter lying wholly outside the issues in [his] suit.” Id. Indeed, he sought to
prevent his transfer out of the prison’s protective custody unit, which apparently
was slated for closure, but his complaint alleged that defendants failed to protect
him from his cellmate. As the district court recognized, the request for a
preliminary injunction/TRO due to his transfer bore no relation to the merits of
the deliberate indifference claim. Consequently, the preliminary injunction was
properly denied. And since a TRO preserves the status quo pending a
determination of a preliminary injunction, see Fed. R. Civ. P. 65(b), the court was
correct to deny the TRO as well.
The judgment of the district court is AFFIRMED. All outstanding motions
are DENIED, and Hicks is reminded of his continuing obligation to make partial
payments until his appellate filing fee is paid in full. See 28 U.S.C. § 1915(b).
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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