Womble v. Chrisman

Appellate Case: 21-7015 Document: 010110641224 Date Filed: 02/04/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 4, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
JOSEPH Z. WOMBLE,

Plaintiff - Appellant,

v. No. 21-7015
(D.C. No. 6:14-CV-00385-JFH-SPS)
JERRY CHRISMAN; TOMMY SHARP, (E.D. Okla.)

Defendants - Appellees.
_________________________________

ORDER AND JUDGMENT *
_________________________________

Before McHUGH, MORITZ, and ROSSMAN, Circuit Judges.
_________________________________

Plaintiff Joseph Z. Womble, who was an inmate at the Mack Alford

Correctional Center in Oklahoma, brought Eighth Amendment claims under

42 U.S.C. § 1983 against Warden Jerry Chrisman and Deputy Warden Tommy Sharp

(“Defendants”). The district court granted summary judgment against Mr. Womble,

holding that he had not exhausted his administrative remedies as required by the

Prisoner Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). Mr. Womble has

*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
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appealed. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand for

further proceedings consistent with this opinion.

I. Background

This appeal involves a civil rights lawsuit Mr. Womble filed in 2014 while

serving a sentence in the custody of the Oklahoma Department of Corrections

(“ODOC”). Mr. Womble, who has since been released, originally named as

defendants the governor of Oklahoma and other high-level officials. The district

court dismissed those defendants from the case at an early stage pursuant to

Fed. R. Civ. P. 12(b)(6).

While that dismissal was on appeal, 1 Mr. Womble filed an amended complaint

in November 2015, naming Mr. Chrisman and Mr. Sharp as defendants. He asserted

Eighth Amendment claims under 42 U.S.C. § 1983 based on allegations of

inadequate nutrition and unhygienic prison conditions due to overcrowding. In

October 2016, Defendants moved to dismiss the amended complaint for failure to

state a claim. Their motion did not identify exhaustion of administrative remedies as

a ground for dismissal. The district court granted Defendants’ motion, and its order

also made no mention of exhaustion. Mr. Womble appealed the dismissal of his

claims against Defendants. We reversed, holding his amended complaint plausibly

alleged claims of inadequate nutrition and failure to maintain sanitary facilities. See

1
We subsequently dismissed the appeal for lack of prosecution. Womble v.
Parker (“Womble I”), No. 15-7066 (10th Cir. Jan. 21, 2016).
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Womble v. Chrisman (“Womble II”), 770 F. App’x 918, 923-24, 925 (10th Cir.

2019).

On remand, Defendants filed a summary judgment motion in September 2019,

arguing, among other things, that Mr. Womble had not exhausted his administrative

remedies. The district court granted the motion, holding “there are no genuine issues

of material fact with respect to whether Plaintiff’s claims are unexhausted.” Aplt.

App. Vol. 2 at 401. Mr. Womble timely appealed.

II. Discussion

Mr. Womble argues the district court erred in granting summary judgment in

favor of Defendants. We review de novo a district court’s grant of summary

judgment under Fed. R. Civ. P. 56. Burnett v. Sw. Bell Tel., L.P., 555 F.3d 906, 907

(10th Cir. 2009). We must “view the evidence and draw 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).

Mr. Womble’s appeal presents two issues. First, he argues Defendants waived

or forfeited the right to assert an exhaustion defense. Second, he contends that even

if Defendants did not waive or forfeit the defense, the district court erred in holding

that he failed to exhaust his administrative remedies. We need not decide the first

issue because, under the circumstances here, we hold Mr. Womble is excused from

any failure to exhaust.

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A. Waiver and Forfeiture

The PLRA requires exhaustion of “such administrative remedies as are

available” prior to filing a § 1983 action concerning prison conditions. 42 U.S.C.

§ 1997e(a). The exhaustion requirement is mandatory, but the Supreme Court has

explained that the word “mandatory” in this context does not mean exhaustion must

be pled and demonstrated in the complaint. Jones v. Bock, 549 U.S. 199, 211-12

(2007). Instead, “it falls. . . to the defendant to raise lack of exhaustion as an

affirmative defense.” Id. at 211. Here, Defendants raised the exhaustion defense, but

Mr. Womble contends they did so too late and therefore waived or forfeited it. See

United States v. Olano, 507 U.S. 725, 733 (1993) (“Whereas forfeiture is the failure

to make the timely assertion of a right, waiver is the intentional relinquishment or

abandonment of a known right.” (internal quotation marks omitted)).

Mr. Womble argues that because exhaustion is an affirmative defense, it stands

to reason that it can be waived or forfeited. See Fort Bend Cnty. v. Davis, 139 S. Ct.

1843, 1849 (2019) (“[A]n objection based on a mandatory claim-processing rule may

be forfeited if the party asserting the rule waits too long to raise the point.” (internal

quotation marks omitted)); Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004)

(holding in the PLRA context that the failure to exhaust available administrative

remedies is an affirmative defense that is waivable), abrogated on other grounds by

Woodford v. Ngo, 548 U.S. 81 (2006). Defendants waived the exhaustion defense,

Mr. Womble contends, because their litigation conduct demonstrates they

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“knowingly and intelligently relinquished” the defense. Wood v. Milyard, 566 U.S.

463, 470 n.4 (2012).

In particular, Defendants omitted the exhaustion defense from their motion to

dismiss even though their co-defendants, represented by the same counsel, elected to

include the defense in their earlier motion to dismiss. 2 Unlike their co-defendants,

Defendants only challenged the adequacy of Mr. Womble’s complaint under

Fed. R. Civ. P. 12(b)(6). Defendants raised the exhaustion defense for the first time

on remand, after we reversed and held that Mr. Womble had adequately pled

constitutional claims against Defendants. See Womble II, 770 F. App’x at 923-25.

According to Mr. Womble, Defendants waived or at least forfeited the exhaustion

defense by raising it after an entire round of appeals and nearly four years after they

were added to the case. See Davis, 139 S. Ct. at 1848, 1852 (affirming holding in

Title VII discrimination case that defendant had forfeited exhaustion defense by

asserting it for the first time “[y]ears into the litigation . . . after an entire round of

appeals all the way to the Supreme Court”).

In response, Defendants seem to concede that the exhaustion defense can be

waived or forfeited in a PLRA case, but argue they did not do so here. Defendants

contend it would have been improper to assert an exhaustion defense in their Rule

12(b)(6) motion, citing Freeman v. Watkins, 479 F.3d 1257 (10th Cir. 2007). In

Freeman, we concluded that after Jones, 549 U.S. 199, inmates no longer have the

2
In ruling on the co-defendants’ motion to dismiss, the district court did not
address the exhaustion defense.
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duty of pleading exhaustion, “and therefore it [was] no longer appropriate for the

district court to require an affirmative showing of exhaustion” in the complaint.

Freeman, 479 F.3d at 1260. We went on to observe, “only in rare cases will a district

court be able to conclude from the face of the complaint that a prisoner has not

exhausted his administrative remedies and that he is without a valid excuse.” Id.

(internal quotation marks omitted). That observation, however, was made in the

context of “the district court’s ability to raise sua sponte the exhaustion requirement.”

Id. Nothing in Freeman suggests that it is improper for a defendant in a PLRA case

to raise lack of exhaustion in a Rule 12(b)(6) motion. Defendants also fail to explain

why it would have been improper for them to assert an exhaustion defense in their

Rule 12(b)(6) motion, but not for their co-defendants to have done so. In short,

Defendants’ insistence that they “properly raised exhaustion at the first opportunity,”

Ans. Br. at 17, is inconsistent with the record and unsupported by our case law.

Ultimately, however, we need not determine whether Defendants waived or

forfeited the exhaustion defense. As discussed below, even if Defendants did not

waive or forfeit the defense, the district court erred in dismissing Mr. Womble’s

claims for failure to exhaust his available administrative remedies.

B. Exhaustion

“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). “Requiring exhaustion allows prison officials an opportunity to resolve

disputes concerning the exercise of their responsibilities before being haled into

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court.” Jones, 549 U.S. at 204. In order “to properly exhaust administrative

remedies prisoners must complete the administrative review process in accordance

with the applicable procedural rules . . . that are defined not by the PLRA, but by the

prison grievance process itself.” Id. at 218 (internal quotation marks and citation

omitted).

ODOC has a four-step “Offender Grievance Process,” set forth in its

Operations Memorandum OP-090124. The first step requires an inmate to discuss an

issue informally with staff. OP-090124, § IV.B. If that fails, the inmate may then

submit a “Request to Staff” or “RTS” detailing the issue and identifying a proposed

remedy. Id., § IV.C. If the RTS is denied, the inmate may submit a formal

grievance, using an “Offender Grievance Report Form,” to the facility’s reviewing

authority, usually the warden or the warden’s designee. Id., § V.A. The “Offender

Grievance Report Form” must be accompanied by the RTS. Id. Finally, the inmate

may appeal the denial of a formal grievance to the Administrative Review Authority

(“ARA”), who is the director of ODOC or a designee. Id., § VII.B.

Critically for our purposes, if the reviewing authority does not respond within

30 days of submission, an inmate may send a grievance to the ARA with evidence

showing the grievance was sent to the proper reviewing authority but not answered.

Id., § V.C.4. ODOC’s procedures identify only two types of grievance forms for

inmates to use for submission to an ARA: (1) a Misconduct/Grievance Appeal Form,

and (2) a Request to Submit a Misconduct/Grievance Appeal Out of Time.

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Id., §§ VII.B.1.a & XII.A. The procedures do not specify which form an inmate

should use to raise with the ARA that a reviewing authority has failed to respond.

Here, Mr. Womble filed at least three separate grievances in an effort to

exhaust his administrative remedies, but we need only focus on his third attempt.

Mr. Womble submitted an RTS to Mr. Sharp on July 8, 2018. Mr. Sharp denied it on

the ground that it lacked specifics. Mr. Womble then sent an “Offender Grievance

Report Form” to Warden Chrisman, which explained: “This facility is overcrowded.

The Supreme Court in Rhodes v. Wilson 3 has said that while overcrowding itself is

not an 8th [A]mendment violation, rights infringed upon due to overcrowding are

actionable. My right to nutritious food, airflow, and a health hab[ilitative]

environment have been encroached upon by the stackin[g] of inmates in dayrooms,

libraries, and TV rooms.” Aplt. App. Vol. 2 at 335-36. Mr. Chrisman never

responded.

Having received no response to his third grievance, Mr. Womble filed a

Misconduct/Grievance Appeal Form with the ARA, pursuant to § V.C.4 of ODOC’s

grievance procedures. On that form, Mr. Womble explained that he filed an RTS,

Mr. Sharp responded, and he then filed a grievance to which Mr. Chrisman did not

respond. The ARA denied Mr. Womble’s appeal in a single line: “YOU CANNOT

3
Mr. Womble probably intended to cite Rhodes v. Chapman, 452 U.S. 337
(1981), in which the Supreme Court rejected the proposition that double-celling of
inmates could itself be cruel and unusual punishment. See id. at 348 (“The double
celling made necessary by the unanticipated increase in prison population did not
lead to deprivations of essential food, medical care, or sanitation.”).
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APPEAL A NON-RESPONSE. REFER TO OP-090124 SECTION V.C. FOR

GUIDANCE.” Aplt. App. Vol. 2 at 340.

The ARA’s insistence that Mr. Womble could not appeal a non-response is

perplexing because § V.C seems to contemplate exactly what Mr. Womble was trying

to do: bring to the ARA’s attention a facility’s non-response to a grievance. It

appears, however, that the ARA was insisting on a hyper-technical reading of that

section, in which a prisoner is permitted to grieve a non-response, but is not

permitted to appeal one. See OP-090124, § V.C.4 (“If there has been no response by

the reviewing authority within 30 calendar days of submission, the offender may send

a grievance to the administrative review authority . . . with evidence of submitting

the grievance to the proper reviewing authority.” (emphasis added)).

The problem with that reading is that ODOC does not provide a form for filing

a “grievance” with the ARA. Defendants insist that Mr. Womble should have used a

facility-level grievance form, but it would have made little sense to use that form

rather than the ARA-specific appeal form. Among other things, the facility-level

grievance form warns the prisoner he may not attach anything to the form except an

RTS and response, Aplt. App. Vol. 2 at 335. Yet § V.C.4 requires the prisoner to

submit evidence of an unanswered grievance. In addition, the facility-level grievance

form requires the prisoner to indicate whether the grievance is being sent to the

warden, district supervisor, or correctional health services administrator. On its face,

the form does not contemplate that it may be used for sending a grievance to the

ARA.

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As we explained above, the PLRA only requires the exhaustion of “available”

administrative remedies. “Where prison officials prevent, thwart, or hinder a

prisoner’s efforts to avail himself of an administrative remedy, they render that

remedy ‘unavailable’ and a court will excuse the prisoner’s failure to exhaust.” Little

v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010). Here, the ARA’s designee

apparently rejected Mr. Womble’s attempt to bring to the ARA’s attention a

non-response on the ground that Mr. Womble used the wrong form. Yet ODOC does

not appear to have a form suited to § V.C.4 grievances. The absence of such a form

rendered the final step of exhaustion unavailable. Accordingly, we excuse

Mr. Womble’s failure to exhaust administrative remedies regarding his Eighth

Amendment claims.

C. Defendants’ Proposed Alternative Grounds for Affirmance

Defendants argue that even if we determine that Mr. Womble is excused from

the exhaustion requirement, we should still affirm on the alternative grounds that

either Mr. Womble failed to prove an Eighth Amendment violation or that

Defendants are entitled to qualified immunity. We decline the invitation. See

Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1256 (10th Cir. 2011) (“affirming on legal

grounds not considered by the trial court is disfavored”).

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III. Conclusion

For the foregoing reasons, we reverse the judgment of the district court and

remand for further proceedings consistent with this opinion.

Entered for the Court

Veronica S. Rossman
Circuit Judge

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