FILED
United States Court of Appeals
Tenth Circuit
July 16, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
WILLIE LEE MITCHELL, JR.,
Plaintiff - Appellant,
v. No. 12-6051
FRED FIGUEROA, Warden; REBECCA (D.C. No. 5:10-CV-01320-R)
WILLIAMS, Trust Account, (W. D. Okla.)
Defendants - Appellees.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Judge, McKAY and HOLMES, 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,
submitted without oral argument.
Plaintiff Willie Lee Mitchell, Jr., a California state prisoner currently confined in a
privately operated correctional facility in Oklahoma, appeals from the district court’s
*
This order and judgment is not binding precedent, except under the doctrines of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.
dismissal without prejudice of his 42 U.S.C. § 1983 civil rights complaint. Exercising
jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
I
Mitchell is an inmate in the custody of the California Department of Corrections
and Rehabilitation (CDOC). Mitchell is currently confined at the North Fork
Correctional Facility (NFCF) in Sayre, Oklahoma. NFCF is owned and operated by the
Corrections Corporation of America, Inc. (CCA). CCA has contracted with the CDOC to
house California inmates, such as Mitchell, at NFCF.
On December 7, 2010, Mitchell, appearing pro se and proceeding in forma
pauperis, initiated these proceedings by filing a civil rights complaint pursuant to § 1983.
The two defendants named in Mitchell’s complaint were Fred Figueroa, the warden at
NFCF, and Rebecca Williams, the facility bookkeeper at NFCF. In his complaint,
Mitchell alleged that Williams, acting on behalf of the CDOC, improperly deducted
money from Mitchell’s prison trust account in order to make payment towards restitutions
and fines associated with Mitchell’s California criminal convictions. Relatedly, Mitchell
complained that NFCF lacked a grievance system that could address the issue, and that
his only avenue of administrative relief was filing a complaint with the California Out of
State Correctional Facility (COCF) Department.
At the defendants’ request, the magistrate judge assigned to the case directed
NFCF officials to prepare and file a Martinez report. See Martinez v. Aaron, 570 F.2d
317 (10th Cir. 1978) (en banc). Defendants complied with that order and, on July 22,
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2011, filed their Martinez report with the court.
The Martinez report indicated that, according to the CDOC’s Office of Victim and
Survivor Rights and Services, Mitchell owed restitution in connection with six separate
California convictions. The report listed the amount of restitution that had been withheld
from Mitchell’s wages since his arrival at NFCF. The report also noted that COCF had in
place policies and procedures that allowed inmates at NFCF to seek administrative relief.
Lastly, the report noted that “Mitchell . . . beg[a]n the [administrative] procedure[s], but
did not complete his appeals prior to filing this action with the Court.” ROA, Vol. 1, at
59. More specifically, the reported noted that Mitchell filed a grievance with the COCF
on November 19, 2010, but that the grievance was found to be improperly filed and was
returned to Mitchell with instructions on how to correct and resubmit it.1
Defendants moved to dismiss Mitchell’s complaint based upon the information
contained in the Martinez report. Defendants argued that Mitchell’s “lack of completion
of the grievance process [could not] be considered ‘sufficient’ or ‘proper’ exhaustion of
administrative remedies,” and that his “lack of completion of the grievance process
clearly constitute[d] a failure by him to first properly exhaust his administrative
remedies.” ROA, Vol. 1, at 112. The magistrate judge converted defendants’ motion to
dismiss to a motion for summary judgment and allowed Mitchell to respond to the motion
1
The report also noted that, after filing this action on December 7, 2010, Mitchell
resubmitted his grievance to the COCF on January 19, 2011. The report noted, however,
that “the grievance was not properly completed and [was] again screened out.” ROA,
Vol. 1, at 61.
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with any supporting evidence he might have.
On January 18, 2012, the magistrate judge issued a thorough report and
recommendation recommending that defendants’ motion be granted and Mitchell’s claims
dismissed without prejudice due to his failure to exhaust his administrative remedies.
Mitchell filed written objections to the report and recommendation. On February 8, 2012,
the district court issued an order adopting the magistrate judge’s report and
recommendation and dismissing Mitchell’s complaint without prejudice for failure to
exhaust. In doing so, the district court found that the undisputed facts established that
“although [Mitchell] attempted exhaustion, [he] did not do so properly nor did he follow
the process through to its completion.” ROA, Vol. 1, at 216.
Mitchell filed a timely notice of appeal. He has since filed with this court an
opening brief and a motion for leave to proceed in forma pauperis on appeal.
II
We review de novo a district court’s dismissal of a claim for failure to exhaust
administrative remedies. Patel v. Fleming, 415 F.3d 1105, 1108 (10th Cir. 2005). 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). In other
words, exhaustion of available administrative remedies is mandatory under the PLRA, see
Booth v. Churner, 532 U.S. 731, 741 (2001), and the “exhaustion requirement applies to
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all prisoners seeking redress for prison circumstances or occurrences,” Porter v. Nussle,
534 U.S. 516, 520 (2002).
Having reviewed the record on appeal in this case, we conclude that the district
court properly disposed of Mitchell’s complaint. Although the record indicates that
Mitchell initiated the administrative remedy process on at least two occasions (once
before filing his complaint and once after), the record also indicates that he failed to fully
exhaust the remedies available to him. Thus, the district court was required under the
PLRA to dismiss his complaint. Because the district court dismissed the complaint
without prejudice, Mitchell can refile if and when he actually exhausts his administrative
remedies.
The judgment of the district court is AFFIRMED. Mitchell’s pleading entitled
“Permission to Amend, clarify of other parties confusion. Opening of my legal mail out
of my presence,” is DENIED. Mitchell’s motion for leave to proceed in forma pauperis
on appeal is DENIED. Appellant is ordered to make immediate payment of the unpaid
balance of the filing fee.
Entered for the Court
Mary Beck Briscoe
Chief Judge
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