Jennings v. Dowling

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 11, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DEWAYNE JENNINGS,

Plaintiff - Appellant,

v. No. 15-6084
(D.C. No. 5:14-CV-00335-C)
JANET DOWLING, Warden; KENYA (W.D. Okla.)
SACKETT, Mailroom Supervisor;
JACKIE GOSS, Property Room
Supervisor,

Defendants - Appellees.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before GORSUCH, MATHESON, and MORITZ, Circuit Judges.
_________________________________

Dewayne Jennings, an inmate proceeding pro se,1 sued defendants for violating

his constitutional rights and state law by depriving him of his personal property. The

*
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
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
1
Although we liberally construe a pro se litigant’s filings, see Erickson v.
Pardus, 551 U.S. 89, 94 (2007), we may not “assume the role of advocate,” Yang v.
Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (quotations omitted); see also
United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009), and we do not “fashion
. . . arguments for him,” United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994).
district court dismissed his federal claims for failure to exhaust administrative

remedies and declined to consider his state-law claims. Mr. Jennings appeals.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

Mr. Jennings has been incarcerated at the James Crabtree Correctional Center

(JCCC) since 2008. On July 29, 2013, JCCC officials intercepted two packages

addressed to him. The packages contained marijuana, tobacco, and benzodiazepine

pills. After an investigation and disciplinary proceedings, JCCC personnel removed

Mr. Jennings from the general inmate population and placed him into special housing

unit (SHU).

According to prison policy, when an inmate is placed in the SHU, his personal

property is inventoried and secured. The inmate’s allowable personal property is

returned to him upon his release from the SHU. But if “excess or unauthorized

property” that is not contraband is found during the inventory process, it must be

disposed. The inmate is generally permitted to choose the method for disposition. If

property found is “contraband,” it will be confiscated and disposed of under the

contraband policy.

As required, Mr. Jennings’ allowable personal property was placed in SHU

storage. The inventory of his property revealed that he had multiple items of

personal property that were either excess or unauthorized, or contraband. These

items were segregated from his allowable personal property, bagged, and tagged.

2
 On August 2, 2013, Mr. Jennings was released from the SHU. The next day,

he completed a Request to Staff (RTS) form, the first written step in the Offender

Grievance Process (OGP) required by the Oklahoma Department of Corrections

(ODOC). In the RTS, he complained as follows:

My problem is that I am missing my property: On Friday 2 of August of
2013, when I picked up my property from SHU storage, I notice[d] that
most of my property was missing. On August 3, 2013 C/O Wolfe came on
the yard and I asked her about my property s[i]nce she was the one that
packed me up. And she told me she sent some of my stuff to [contraband],
because I had [too] much stuff. These are the items that I am missing: 1
clear tune fan [sic][;] 1 Address Book (Brown)[;] 1 Pink Bottle of Lotion; 1
Blue Note book (3 ring [binder])[;] My Transcrip[t] . . . from my case
(CF-07-1387); [judgments and sentences] (from 3 other Cas[]es); 1 yellow
photo album (family photos)[;] 2 Jars of [Folger’s] Coffee (summer
package); 1 Box of Sweet & Low (Summer package)[;] 3 legal Bookies
[sic] . . . [;] (1) 12 in 1 dictionary . . . ; 2 scrap Bookies [sic] of female’s
[sic] . . . [;] 1 Bar shav[ing] soap; 1 clear case of Beads[;] 1 Blue Box of
Beads; 1 Bible Box of Beads; 3 Clear Cover Books of Case Law . . . [;] 1
Gray Canteen . . . [;] 6 Spiritual Book[s] . . . ; (4) 3 x 5 spiral [notebooks][;]
4 Summer Sau[s]age; 1 Ice chest; 1 Gray shorts[;] 1 Koss Titanium
headphones[.]
Special Report (SR), Supp. R. at 22-23. Mr. Jennings requested that the prison staff

“give me back my property.” Id. at 22.

A staff member completed a handwritten response to the RTS dated August 7,

2013, which stated:

Mr. Jennings—Many items mentioned above exceeded allowable items per
[the prison’s property] matrix. [I]f items were found unaltered & you have
proof of purchase you may either send them home at your expense or speak
with Mrs. Goss about preparing for visitor pickup; you have 30 days to take
care of this matter.
Id.

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 On August 27, 2013, Mr. Jennings submitted an Offender Grievance Report

Form, the next step in the grievance process. He described his problem as follows:

My complaint is that I have not received my personal property . . . that was
sent to Contraband on July 29, 2013 by C/O Wolfe. This is affecting me
because it [is] all of my personal property. My legal papers; court
trans[cripts] from my case; legal book; photo album; papers; letters; address
book; headphones and all other personal property that was put on [the]
inmate property inventory . . . Form 030120A that was [completed by] the
inventory officer. . . .
Id. at 20-21.
The facility returned this grievance unanswered, stating that the “Grievance

[was] submitted out of time from [the] date of incident or date of response to the

‘Request to Staff.’” Id. at 24. Mr. Jennings appealed the rejection of his

grievance, noting he had not received the denial of his RTS until nearly two weeks

after the denial. The facility rejected his appeal, again citing the untimeliness of

his underlying grievance. He then filed a request to submit his grievance appeal

out of time, which was denied without comment.2

Mr. Jennings next filed this suit in state court. The defendants removed the

action to federal court. In contrast with his RTS and grievance, Mr. Jennings’

complaint charged that Kenya Sackett, mailroom supervisor at JCCC,
2
In their motion to dismiss, the defendants argued that Mr. Jennings had failed
to timely and completely exhaust his administrative remedies through the OGP, citing
his single untimely grievance. The magistrate judge rejected this argument. He
concluded that Mr. Jennings had “attempted in good faith to comply with his
obligations under the ODOC Grievance Process but prison officials hindered his
attempts.” R. at 114. In their objections to the magistrate judge’s report and
recommendation, the defendants did not focus on the timeliness requirements of the
OGP, but instead raised their current argument: that Mr. Jennings’ grievance did not
address the property described in his complaint that was allegedly lost or missing
from SHU storage, and for which he seeks compensation.
4
 has confiscated various photos, [books], and other property that the
plaintiff[’s] family and friends had bought and sent to plaintiff while in
prison and kept in SHU storage. This was in violation of prison rules that
permitted me to have photos; law books; letters; obituar[ies]. This was
done with prejudiced vigilantism to cause me Mental and Emotional stress.
R. at 10. The complaint made essentially identical allegations against Jackie Goss,

property room supervisor. In the factual section of his complaint, Mr. Jennings

explained:

(A.) On July 29, 2013 I was place[d] in SHU. Mrs. Wolfe C/O conducted
a routine inventory of my personal property in connection with this status
change[].
(B.) [Sometime] between July 29, 2013 and August 2, 2013, Mrs. Jackie
Goss and Mrs. Kenya Sacket[t] went through my personal property and
confiscated Law Books; Photo[s]; letter[s] and obituar[ies] of my parents.
This intentionally diverted inmate personal property for the[ir] own
personal use. This was a malicious and bad faith act by these two
employee[s].
Id. at 11.

Based on these allegations, Mr. Jennings asserted claims under 42 U.S.C.

§ 1983 for denial of equal protection, unreasonable search and seizure, and denial of

due process. He requested declaratory and injunctive relief and damages. He

attached “Exhibit A” to his complaint detailing the items he claimed were missing or

destroyed. The items he listed included letters, photos, an obituary, an address book,

legal books, and a tube of toothpaste.

The district court found that Mr. Jennings had failed “to administratively

exhaust the same claims on which the present action is based” because he “grieved

the loss of different property than that for which he now seeks recovery in court.”

5
R. at 163. Accordingly, it dismissed his federal claims for failure to exhaust his

administrative remedies, and declined jurisdiction over his state-law claims.

Mr. Jennings then filed a “Motion to Reconsider” under Fed. R. Civ. P. 60(b),

in which he alleged that the RTS and grievance identified the same property as he

listed in the complaint in this action. The district court rejected his argument. It

concluded that the property was not the same, and that “[b]y failing to properly

identify the property for which he claims loss during the administrative process,

[Mr. Jennings] did not provide an opportunity for Defendants to resolve the issue

short of litigation. Consequently, he failed to properly exhaust his administrative

remedies.” R. at 169-70.

II. DISCUSSION

1. Exhaustion Under PLRA

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). “There is no question that exhaustion is mandatory under the PLRA and

that unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199,

211 (2007). We review de novo the district court’s finding that an inmate failed to

exhaust his administrative remedies. Thomas v. Parker, 609 F.3d 1114, 1117

(10th Cir. 2010).

6
 Although “[t]he level of detail necessary in a grievance to comply with the

grievance procedures will vary from system to system and claim to claim . . . it is the

prison’s requirements . . . that define the boundaries of proper exhaustion.” Jones,

549 U.S. at 218.

2. Requirements of ODOC’s Grievance Policy

The OGP contains four steps that an inmate must complete to exhaust a claim.

Because the issue here involves the content of Mr. Jennings’ grievances, we briefly

summarize these procedural requirements. The inmate must speak informally with a

case manager or staff member; submit an RTS; file a grievance; and appeal the denial

of the grievance. We will assume, as the magistrate judge did, that Mr. Jennings

either met or should be excused from these requirements.

We must determine whether Mr. Jennings’ grievance sufficiently described the

issue that he later raised in his complaint. The OGP provides some guidance

concerning the level of specificity required throughout the grievance process. It

states that an RTS must “detail[] the issue/incident completely but briefly.” OGP

IV(C), Supp. R. at 32. It further provides:

This statement must be specific as to the complaint, dates, places,
personnel involved and how the offender was affected.
Id. IV(C)(2) (emphasis added). Finally, “[o]nly one issue or incident is allowed per

grievance.” OGP V(A)(4), id. at 34.

7
3. Application to Mr. Jennings’ Complaint

The OGP thus contemplates a specific RTS and grievance that describe the

particular incident. Mr. Jennings’ RTS complained about not getting back his

property after C/O Wolfe told him some of it was sent to contraband. He identified

specific items. In his grievance, he also mentioned property sent to contraband, and

identified different items. In his court complaint, he mentioned yet a third set of

property, and complained that it was taken from SHU storage. The different

descriptions of the property involved are illustrated by a chart we have prepared,

which is attached as an appendix to this order and judgment. Although there is some

overlap among the three property listings, we agree with the district court that these

varying allegations about different property items did not satisfy the specificity

requirements of the OGP. In addition, the differences in the descriptions of the

specific property are compounded by the ambiguities between his RTS and grievance

and the complaint concerning the fate of the missing property—i.e., whether it was

sent to contraband or stolen from his allowed property.

Nor did Mr. Jennings’ RTS and grievance meet the purposes of the exhaustion

requirement. The Supreme Court has explained that “[e]xhaustion of administrative

remedies serves two main purposes.” Woodford v. Ngo, 548 U.S. 81, 89 (2006). The

first purpose is to protect agency authority, both by giving the agency “an

opportunity to correct its own mistakes with respect to the programs it administers

before it is haled into federal court,” and by discouraging disregard of agency

procedures. Id. (internal quotation marks omitted). The second purpose is to

8
promote efficiency by permitting claims, where possible, to be settled at an

administrative level; and, even where this is not possible, to develop “a useful record

for subsequent judicial consideration.” Id.

These purposes were not met here. Even if the defendants had corrected the

concerns that Mr. Jennings complained about in the RTS and grievance, it would not

have solved the problem asserted in his complaint: the alleged theft from SHU

storage of a different set of property than the ones described in the RTS and

grievance. Nor did his three sets of different allegations create a useful record for

federal-court review. Thus, we affirm the district court’s determination that

Mr. Jennings failed to fulfill the exhaustion requirement before filing his complaint.

Mr. Jennings makes one additional argument: exhaustion should be excused

altogether because he originally filed this case in state court where he claims PLRA’s

exhaustion requirement did not apply. The defendants then removed the action to

federal court. The courts that have addressed this question have concluded that

PLRA’s exhaustion requirement applies to inmates who sue in state court and then

have their cases removed to federal court. See, e.g., Marziale v. Silas, No.

4:15CV00655-JLH-JJV, 2015 WL 8431524, at *2 (E.D. Ark. Nov. 10, 2015)

(collecting cases), report & recommendation adopted, 2015 WL 8485240 (E.D. Ark.

Dec. 8, 2015). Mr. Jennings cites no authority to the contrary.

9
 III. CONCLUSION

We affirm the district court’s judgment of dismisssal. We grant Mr. Jennings’

motion to proceed in forma pauperis in this appeal, and remind him of his obligation

to make partial payments until the filing fee has been paid in full.

ENTERED FOR THE COURT,

Scott M. Matheson, Jr.
Circuit Judge

10
 APPENDIX

Item Identified Identified in Mentioned in
in RTS grievance complaint, ex. A
Fan x x
Address Book x x x
Pink Lotion Bottle x
Blue notebook x
Transcript x x
Judgments/Sentences x x
(“legal papers”)
Photo album x x ?
(mentions
specific photos in
detail)
Coffee x
Sweet & Low x
3 legal books x x x
(“legal book”) (2 “legal writing”
books)
Dictionary x
“scrap book of females” x
Shaving soap x
Beads x
Books of case law x x
Gray canteen x
6 spiritual books x
4 3x5 spiral notebooks x
4 summer sausages x
1 ice chest x x
Gray shorts x x
Koss titanium x x
headphones (headphones)
papers x
letters x x
“all other personal x

11
property on inmate
property inventory”
Obituary x
Toothpaste x

12