FILED
United States Court of Appeals
Tenth Circuit
June 26, 2009
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
CHARLES MOORE,
Plaintiff - Appellant, No. 08-7112
v. (E.D. Oklahoma)
JUSTIN JONES, Director; RANDALL (D.C. No. 07-CV-00062-RAW-SPS)
WORKMAN, Warden; LIEUTENANT
HANCOCK; RANDY RODEN, Tower
#5 Officer,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.
After examining the appellate briefs and the appellate record, this court 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This order and judgment is not binding precedent except under the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.
Proceeding pro se, Oklahoma state prisoner Charles Moore appeals the
district court’s dismissal of the civil rights complaint he brought pursuant to 42
U.S.C. § 1983. The claims asserted in Moore’s complaint arose from an incident
in which Moore was assaulted by several other inmates. Moore alleged violations
of his Eighth and Fourteenth Amendment rights in connection with the incident.
Defendants moved to dismiss Moore’s complaint, arguing, inter alia, that he
failed to exhaust his administrative remedies. The district court granted the
motion and Moore appeals.
This court conducts a de novo review of a dismissal for failure to exhaust
administrative remedies. See Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th
Cir. 2002). The Prison Litigation Reform Act (“PLRA”), requires that
“available” administrative remedies be exhausted prior to filing a § 1983 action
with respect to prison conditions. 42 U.S.C. § 1997e(a). The record contains a
copy of an inmate grievance report form signed by Moore and dated November
10, 2006. On December 12, 2006, Moore submitted a Request to Staff inquiring
about the status of his grievance. In response, Moore was advised that the
Oklahoma State Penitentiary had no record of his grievance. He then submitted
the grievance to the Oklahoma Department of Corrections. The grievance was
returned to Moore on January 11, 2007, with instructions to resubmit it to the
facility head. There is no evidence in the record that the grievance was
resubmitted or that Moore pursued any other administrative remedy.
-2-
In Jernigan, this court held that “[a]n 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. By not
resubmitting his grievance as instructed, Moore failed to employ the
administrative remedies available to him. See id. at 1032-33.
The district court’s judgment dismissing Moore’s complaint without
prejudice is affirmed. Moore’s application to proceed in forma pauperis on
appeal is granted, but he is reminded he remains obligated to continue making
partial payments until his appellate filing fee is paid in full. See 28 U.S.C.
§ 1915(b).
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-3-