FILED
United States Court of Appeals
Tenth Circuit
September 7, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
TERRENCE R. BRIDGEFORTH,
Plaintiff-Appellant, No. 10-7024
v. (E.D. of Okla.)
SERGEANT WALKER, and (D.C. No. 6:09-CV-00136-RAW-SPS)
OFFICER MARSHALL,
Defendants-Appellants.
ORDER AND JUDGMENT *
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges. **
Terrence R. Bridgeforth, a former state prisoner appearing pro se, 1 appeals
the district court’s dismissal of the prisoner abuse claim he brought under 42
U.S.C. § 1983. The district court found Bridgeforth failed to exhaust his
available administrative remedies before bringing suit. On appeal, Bridgeforth
*
This order and judgment is not binding precedent except under the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.
**
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.
1
Because Bridgeforth is proceeding pro se, we construe his filings
liberally. See Van Deelan v. Johnson, 497 F.3d 1151, 1153 n. 1 (10th Cir. 2007).
challenges that determination, arguing he was barred from initiating the relevant
administrative grievance procedure.
Having jurisdiction under 18 U.S.C. § 1291, we AFFIRM.
I. Background
Bridgeforth filed the complaint giving rise to this appeal in federal district
court on April 8, 2009, while he was imprisoned at the Oklahoma State
Penitentiary in McAlester, Oklahoma. At the time, a different lawsuit filed by
Bridgeforth alleging incidents of prisoner abuse was pending in state court. In his
federal action, Bridgeforth seeks relief for violations of his constitutional rights
he alleges occurred in March 2009, three months after he filed his state court
action.
Specifically, Bridgeforth alleges that, during an argument with Sergeant
Walker on March 25, 2009, Sergeant Walker stated he would come to
Bridgeforth’s cell and beat him. Bridgeforth also asserts he was subjected to
more harassment the next day. He alleges he was denied his meals, heckled, had
the water and lights in his cell turned off, and that Sergeant Walker, Officer
Marshall, and two other unidentified corrections officers beat him. Bridgeforth
further maintains he suffered a swollen eye and leg, soreness, dizziness, blurred
vision, cuts, and bruises as a result of the beating.
Sergeant Walker and Officer Marshall deny the incidents ever occurred.
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The Oklahoma Department of Corrections (ODOC) has an established
administrative grievance procedure. Bridgeforth did not initiate the grievance
process regarding the events he alleges occurred in March 2009. Instead, he filed
suit in federal district court.
Below, Sergeant Walker and Officer Marshall argued this action should be
dismissed, and alternatively that they were entitled to summary judgment, because
Bridgeforth did not exhaust his available administrative remedies before bringing
suit. The district court agreed with Sergeant Walker and Officer Marshall and
granted their motion to dismiss.
II. Discussion
Bridgeforth contends the district court erred by dismissing his action. He
argues he should not have to exhaust the available administrative process because
the prison’s grievance policy bars inmates from pursuing the administrative
grievance procedure for matters that are in litigation. He contends his state court
action satisfies this exception even though it involves a different claim.
We review de novo a district court’s finding that a prisoner-plaintiff failed
to exhaust administrative remedies. See Thomas v. Parker, 609 F.3d 1114, 1117
(10th Cir. 2010).
Under the Prisoner Litigation Reform Act, a prisoner must exhaust his
available administrative remedies before filing a lawsuit regarding prison
conditions in federal court. See 42 U.S.C. § 1997e; Little v. Jones, 607 F.3d
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1245, 1249 (10th Cir. 2010). “Because the prison’s procedural requirements
define the steps necessary for exhaustion, an inmate may only exhaust by properly
following all of the steps laid out in the prison system’s grievance procedure.”
Little, 607 F.3d at 1249 (internal citation omitted). If a plaintiff is a prisoner
when he files suit, § 1997e’s exhaustion provision applies. See Norton v. City of
Marietta, 432 F.3d 1145, 1150 (10th Cir. 2005).
The prison’s grievance policy requires an informal consultation with staff,
then three written steps: completion of a Request to Staff form, filing of a formal
grievance with the facility head, and submission of an appeal to the
Administrative Review Authority. See R. at 46S52; Thomas, 609 F.3d at 1117.
Prisoners exhaust the administrative process only after they complete all of these
steps. The grievance policy also provides, “Grievances may not be submitted
about matters that are in the course of litigation.” R. at 44.
Bridgeforth was an inmate at the time he initiated this case and thus is
subject to the requirements of the PLRA. The PLRA requires prisoners to exhaust
all of their available administrative remedies before filing suit. Bridgeforth did
not comply with that requirement. And, his argument that he should be excused
from satisfying the exhaustion provision because similar issues are involved in his
state court case reads the prohibition on which he relies too broadly.
The prison’s grievance policy bars inmates from proceeding with the
grievance procedure if submissions would involve “matters that are in the course
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of litigation.” R. at 44. Here, while Bridgeforth’s state court case and the alleged
events involving Sergeant Walker and Officer Marshall raise similar issues
because they both relate to prisoner abuse, they do not concern the same “matter.”
Bridgeforth’s state court case—filed in December 2008—concerns a matter or
matters that occurred prior to his federal court claims. He cannot bypass the
administrative grievance procedure by grafting the March 2009 matter on to the
matter or matters that arose before December 2008—i.e., by filing an amended
complaint in the state court case—because the administrative process is to be
undertaken for each separate incident.
In short, Bridgeforth’s state court case does not excuse him from complying
with the prison’s grievance policy and he is therefore subject to the PLRA’s
exhaustion provision.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court. We also DENY
Bridgeforth’s request to proceed in forma pauperis on appeal. While Bridgeforth
has shown a financial inability to pay the required fees, he has not demonstrated a
reasoned, non-frivolous argument on the law and facts in support of the issues
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raised on appeal. See McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812S13
(10th Cir. 1997).
Entered for the Court,
Timothy M. Tymkovich
Circuit Judge
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