FILED
United States Court of Appeals
Tenth Circuit
December 8, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
CESAR CUBA GARCIA,
Plaintiff - Appellant, No. 10-2143
v. (D. New Mexico)
DR. JOSEPH; VISTULA CURRY, Lt.; (D.C. No. 2:07-CV-00643-RB-WDS)
DR. BROWN; JODIE BROWN, Deputy
Warden, Penitentiary of New Mexico;
WALTER COOPER, Warden,
Guadalupe County Correctional
Facility; STANLEY MOYA, Warden,
Penitentiary of New Mexico; MANUEL
PACHECO, Deputy Warden,
Penitentiary of New Mexico; JOHNNY
ARIAS, Unit Manager, Penitentiary of
New Mexico; LILIAN CHUMBLEY;
RUDY GONSALES,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.
*
This order and judgment is not binding precedent except under the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 appellate briefs and the appellate record, this court has
determined unanimously that oral argument would not materially assist the
resolution 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.
Proceeding pro se, New Mexico state prisoner Cesar Cuba Garcia appeals
the district court’s dismissal of the civil rights complaint he brought pursuant to
42 U.S.C. § 1983. Garcia’s amended complaint was filed on September 13, 2007,
and included claims against ten defendants. Eight of the defendants were
identified as employees of the Guadalupe County Correctional Facility in Santa
Rosa, New Mexico (the “Santa Rosa Defendants”). The remaining two
defendants, Drs. Joseph and Brown (the “Los Lunas Defendants”), were employed
in the Mental Health Treatment Center at the Central New Mexico Correctional
Facility in Los Lunas, New Mexico. Garcia alleged that one of the Santa Rosa
Defendants, Lieutenant Vistula Curry, sexually harassed him and the remaining
Santa Rosa Defendants retaliated against him for pursuing claims against Curry.
Garcia also alleged the Los Lunas Defendants interfered with his right to access
the courts and were deliberately indifferent to his medical needs, all in violation
of his First, Eighth, and Fourteenth Amendment rights.
The Santa Rosa Defendants moved to dismiss Garcia’s complaint, arguing,
inter alia, that he failed to exhaust his administrative remedies. The district court
granted the motion and dismissed Garcia’s complaint without prejudice. The Los
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Lunas Defendants were not served with process. The district court, however,
dismissed Garcia’s claims against the Los Lunas Defendants, concluding Garcia’s
complaint failed to state a claim on which relief could be granted. See 28 U.S.C.
§ 1915(e)(2)(B). Garcia appeals the dismissal of all claims. 1
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 a prisoner
exhaust available administrative remedies prior to filing a § 1983 action with
respect to prison conditions. 42 U.S.C. § 1997e(a). This court has 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.” Jernigan, 304 F.3d at 1032; see also Jones v. Bock, 549 U.S. 199, 218
(2007) (“[T]o properly exhaust administrative remedies prisoners must complete
the administrative review process in accordance with the applicable procedural
rules . . . .” (quotation omitted)). There is evidence in the record that
administrative remedies were available to Garcia but he failed to pursue any
1
Garcia’s appellate brief does not specifically identify the issues he seeks to
appeal or contain any focused argument challenging the conclusions reached by
the district court. Because Garcia is proceeding pro se, we construe his brief
liberally and “have tried to discern the kernel of the issues [he] wishes to present
on appeal.” de Silva v. Pitts, 481 F.3d 1279, 1283 n.4 (10th Cir. 2007). We do
not, however, “take on the responsibility of serving as [Garcia’s] attorney in
constructing arguments and searching the record.” Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
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remedy to completion. Thus, the district court correctly concluded Garcia failed
to employ the administrative remedies available to him with respect to the claims
asserted against the Santa Rosa Defendants in his complaint. See id. at 1032-33.
The district court’s judgment dismissing Garcia’s claims against the Santa Rosa
Defendants without prejudice is affirmed.
A district court’s decision to dismiss a prisoner’s complaint pursuant to
§ 1915(e)(2)(B) for failure to state a claim is reviewed de novo. See Kay v.
Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). For substantially the same reasons
stated by the district court, we conclude Garcia’s complaint fails to state a
plausible claim for relief against the Los Lunas Defendants. See id. at 1218.
Accordingly, the district court’s judgment dismissing the claims against the Los
Lunas Defendants with prejudice is affirmed.
Garcia’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). All other
outstanding motions are denied.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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