Thomas v. Hormel

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

FOR THE TENTH CIRCUIT February 16, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
JONATHAN THOMAS,

Plaintiff - Appellant,

v. No. 20-6047
(D.C. No. 5:18-CV-01256-J)
BETSY HORMEL, individually, Facility (W.D. Okla.)
Health Services Administrator; RICK
WHITTEN, individually, Warden;
JEFFERY TROUT, individually, Doctor;
JOE ALLBAUGH, individually, DOC
Director; WILLIENELL BRYANT-PITTS,
individually, Doctor; C. PAYNE,
individually, C.O. 3 (Captain); FNU
BOYNSTON, individually, Sergeant, C.O.;
DAN GROGAN, individually, Unit
Manager #5; W. CLAY, individually, C.O.;
DIRECTOR DOC SCOTT CROW,

Defendants - Appellees.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before HARTZ, KELLY, and EID, Circuit Judges.
_________________________________

*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
 In this civil rights case, inmate Jonathan Thomas appeals pro se from a district

court order granting summary judgment in favor of all defendants and denying Thomas’s

motion for appointment of counsel. The district court held Thomas failed to exhaust his

administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C.

§ 1997e(a). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

BACKGROUND

At the times relevant to this case, Thomas was an inmate in the custody of the

Oklahoma Department of Corrections (ODOC), housed at the James Crabtree

Correctional Center. Thomas has health conditions that require regular medication and

care by outside medical providers. He asserted claims under 42 U.S.C. § 1983 against

several state defendants, claiming they violated his constitutional rights by causing him to

miss his medications, failing to provide appropriate medical treatment, and withholding

“indigent supplies.”

In support of his missed-medications claim, Thomas alleged that on five occasions

in 2018 he did not receive his prescribed medications. Of those five dates, Thomas

alleged specific details concerning only two. He alleges that on August 17, 2018, he was

eating lunch when a prison guard told him he was taking too long to eat. He apparently

responded adversely, which caused the guard to place him in segregation to “cool off.”

As a result, Thomas missed the “pill line” to obtain his medication for that day.

Thomas filed a “Request to Staff” under Oklahoma’s inmate grievance procedure,

and requested what amounts to injunctive relief: “Make sure that it never happens

again.” R. at 46. His requested relief effectively was granted by a staff member who

2
wrote in the “Disposition” section of Thomas’s request: “You are correct. It won’t

happen again.” Id.1 Thomas alleges, however, that on November 26, 2018, he again

missed his medications as a result of a visit to an outside hospital for his regular care. He

did not file a grievance, nor did he file a grievance for any of the other three dates (March

26, April 20 and July 16) on which he alleges he missed his medication.

In support of his claim that Defendants failed to provide proper medical care,

Thomas alleges that sometime during 2018, he developed a rash or infection on his legs

and that the prison staff failed to treat his condition. He filed a Request to Staff seeking

outside medical care. The request was denied on the ground that Thomas had not been

complying with the medical treatment prescribed by the staff. Thomas then filed a

formal grievance pursuant to the inmate grievance procedure, which was denied on the

same grounds. Thomas appealed, but his appeal was rejected because it failed to comply

with the required procedures. Thomas was allowed 10 days to submit a corrected appeal,

but he never did so.

Somewhat relatedly, Thomas submitted a Request to Staff on March 5, 2019, in

which he stated he observed prison staff adding salt to the unit water system. He

included no request for relief, and his Request to Staff was returned unanswered.

Thomas then filed a formal grievance in which he clarified that he believed the salt was

damaging the skin on his legs, causing “blackouts,” and affecting his blood pressure.

1
On March 21, 2019, Thomas filed another grievance concerning the very
same incident, but added details concerning the unsanitary conditions of his
segregation. The grievance was denied as untimely, among other reasons.
3
He also specifically requested compensation for the damage to his legs. The warden

rejected the grievance based on procedural errors, and gave Thomas 10 days to correct

the errors and resubmit. Thomas never did.

Thomas also alleges that during transport to outside medical care providers, he

was not allowed bathroom breaks and urinated himself. He never submitted any

grievance or other correspondence to prison authorities concerning this allegation.

Finally, Thomas submitted a Request to Staff in June 2018 asserting he qualified

as indigent based on his prison account balance, and that he was therefore entitled to

certain “indigent supplies.” In response, the prison staff informed Thomas that he was

not indigent based on his account balance and the applicable regulations. He did not file

a grievance or otherwise appeal the staff’s determination that he was not indigent.

DISCUSSION
I. Standards of Review

We review summary judgment decisions de novo, “view[ing] the evidence and

draw[ing] reasonable inferences therefrom in the light most favorable to the nonmoving

party.” Talley v. Time, Inc., 923 F.3d 878, 893 (10th Cir. 2019) (internal quotation marks

omitted). Summary judgment is required when “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). “We review de novo the district court’s finding of failure

to exhaust administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032

(10th Cir. 2002). Because Thomas appears pro se, we construe his filings liberally, but

4
we do not serve as his advocate. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d

836, 840 (10th Cir. 2005).

II. Civil Rights Claims

Defendants argue the district court correctly granted summary judgment in

their favor on the ground that Thomas had not exhausted his administrative

remedies.2 We agree as to all but one of Thomas’s claims. As to that one claim, we

conclude Thomas exhausted his administrative remedies, but affirm on the alternative

ground that Defendants are entitled to summary judgment on the merits.

Under the Prison Litigation Reform Act, a prisoner cannot bring an action

“with respect to prison conditions under section 1983 . . . until such administrative

remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Proper exhaustion

requires compliance with all prison grievance procedures, including “deadlines and

other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 90 (2006). “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.” Jernigan, 304 F.3d at 1032.

ODOC has a multi-step grievance process by which inmates may exhaust their

administrative remedies. The first step requires an inmate to discuss an issue informally

with staff. If that discussion proves unfruitful, the inmate may then submit a “Request to

2
Thomas also asserted a claim that Defendants violated his right to access
courts. The district court dismissed that claim under Fed. R. Civ. P. 12(b)(6).
Thomas does not challenge that dismissal on appeal.
5
Staff” detailing the issue and identifying a proposed remedy. If the Request to Staff is

denied, the inmate may submit a formal grievance to the facility’s reviewing authority.

Finally, the inmate may appeal the denial of a formal grievance to the Administrative

Review Authority or, for medical issues, the Medical Administrative Review Authority.

When a grievance or appeal is not submitted properly, an inmate has the opportunity to

correct and resubmit it within 10 days.

Here, the district court correctly concluded on summary judgment that Thomas

had not exhausted his administrative remedies with respect to his complaint about

inadequate medical care of his rash, his related allegations about salt in the unit water

system, the alleged lack of bathroom breaks during transport to outside medical

providers, and his claimed entitlement to “indigent supplies” based on his account

balance. In each of those instances, he failed to submit a corrected grievance, failed to

file a grievance after his Request to Staff was denied, or failed to engage in the grievance

procedures at all.

Whether Thomas exhausted his administrative remedies concerning missed

medications presents a slightly different issue. He alleges he did not receive his

prescribed medications on five separate dates in 2018, but for four of those dates—March

26, April 20, July 16, and November 26—there is no indication in the record that he ever

engaged in Oklahoma’s inmate grievance procedures. The district court correctly

determined Thomas had not exhausted his administrative remedies as to those four

alleged incidents.

6
 Failure to exhaust some but not all claims, however, does not require dismissal of

the entire complaint. Jones v. Bock, 549 U.S. 199, 222–23 (2007). And there appears to

be one missed-medication incident that Thomas arguably did exhaust. Thomas alleges he

missed his medications on August 17, 2018, when he was placed in segregation to “cool

off.” He filed a Request to Staff and sought assurances that it would not happen again.

Prison staff effectively granted his request, so there was nothing for Thomas to appeal.3

In his § 1983 deliberate indifference claim, Thomas seeks damages, not the injunctive

relief he sought in his Request to Staff. But under the PLRA, a prisoner must “exhaust”

processes, not forms of relief. Booth v. Churner, 532 U.S. 731, 739 (2001). And nothing

in Oklahoma’s multi-step grievance process requires that an inmate specify whether he is

seeking damages. See Kikumura v. Osagie, 461 F.3d 1269, 1282 (10th Cir. 2006) (“[T]he

rules [for exhaustion] come from the prison grievance systems themselves.” (internal

quotation marks omitted)), abrogated in part on other grounds by Bell Atl. Corp. v.

Twombly, 550 U.S. 544 (2007). It therefore appears that Thomas did exhaust his

administrative remedies with respect to this claim.

3
It is unclear from the record what assurances the prison staff actually gave.
A prison staff member wrote on Thomas’s request, “It won’t happen again”—but it is
unclear what the pronoun “it” referred to. Perhaps it meant staff would ensure
Thomas would never under any circumstances miss his medications again, though
that meaning seems unlikely in the context of a prison and given the frequent need to
transport Thomas to outside medical care providers. More likely it meant staff would
not overlook Thomas’s medication needs in the future whenever it was deemed
necessary to place him in segregation. In any event, we need not resolve this
ambiguity in light of our disposition of this appeal.
7
 We may, however, “affirm on any ground supported by the record, so long as the

appellant has had a fair opportunity to address that ground.” Reedy v. Werholtz, 660 F.3d

1270, 1276 (10th Cir. 2011) (internal quotation marks omitted). In this case, Defendants

moved to dismiss Thomas’s deliberate indifference claim on the merits, arguing that he

failed to state a claim. Thomas had an opportunity to respond, R. at 106, and we

therefore find it appropriate to address the merits of Thomas’s only exhausted claim.

Prisoners have a constitutional right to adequate medical care, and recovery under

§ 1983 is available for deliberate indifference to their serious medical needs. Estelle v.

Gamble, 429 U.S. 97, 104–05 (1976). To establish such a claim, a plaintiff must first

allege that the deprivation is “sufficiently serious” as an objective matter to constitute a

deprivation of constitutional dimension—that is, “one that has been diagnosed by a

physician as mandating treatment or one that is so obvious that even a lay person would

easily recognize the necessity for a doctor’s attention.” Strain v. Regalado, 977 F.3d 984,

989–90 (10th Cir. 2020) (internal quotation marks omitted). Then, the plaintiff must

allege the defendant was subjectively aware of that need and that failing to treat it would

pose an excessive risk to the inmate’s health or safety. Clark v. Colbert, 895 F.3d 1258,

1267 (10th Cir. 2018).

Thomas alleges having missed medications on five occasions over approximately

eight months. But because he has exhausted his administrative remedies with respect to

only one of those occasions, his claim must rely solely on the allegation that he missed

his medications on a single day. He does not allege any injury resulting from that

incident, and the record contains an unrebutted affidavit from ODOC’s Chief Medical

8
Officer averring that sporadic and occasional lapses in Thomas’s medication are not

harmful to his various medical conditions. At best, Thomas’s allegation establishes

inadvertence on the part of the prison staff, causing him no injury. Such facts do not

establish a constitutional deprivation as an objective matter. See Mayweather v. Foti,

958 F.2d 91, 91 (5th Cir. 1992) (occasional missed doses of medication, without more,

“fall[s] far short of establishing deliberate indifference” by prison staff). “It is obduracy

and wantonness, not inadvertence or error in good faith, that characterize the conduct

prohibited by the Cruel and Unusual Punishments Clause.” Whitley v. Albers, 475 U.S.

312, 319 (1986). Accordingly, we affirm the dismissal of Thomas’s deliberate

indifference claim on the alternative ground that he failed to state a claim under

Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915A.

III. Rehabilitation Act Claim

Thomas asserts a claim under the Rehabilitation Act, 29 U.S.C. § 794(a). But he

asserts that claim for the first time on appeal. Arguments or claims raised for the first

time on appeal will not be considered. McDonald v. Kinder-Morgan, Inc., 287 F.3d 992,

999 (10th Cir. 2002).

CONCLUSION

We affirm the district court’s judgment, and we affirm the district court’s

denial of the appointment of counsel. We grant Thomas’s motion for leave to

9
proceed without prepayment of costs or fees and remind him that he is obligated to

continue making partial payments until the entire fee has been paid.

Entered for the Court

Allison H. Eid
Circuit Judge

10