Jernigan v. Stuchell

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 17 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

DEWEY EARL JERNIGAN,

Petitioner - Appellant,
v. No. 02-6052

KAREN STUCHELL; RAMONA
HOLLIER; JAMES L. SAFFLE;
MELINDA GUILFOYLE; JOHN
DOE, I; JOHN DOE, II; B.
HENDRIX; ELVIS HIGHTOWER;
JOE S. HOPPER, in individual and
official capacities; MICHAEL
QUINLAN, in individual and official
capacities; CORRECTIONS
CORPORATION OF AMERICA, in
individual and official capacities,

Respondents - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-01-320-F)

Dewey Earl Jernigan, Pro Se.

Linda Soper, Assistant Attorney General, Litigation Section, Oklahoma City,
Oklahoma, for Defendants-Appellees James L. Saffle, Melinda Guilfoyle and
Karen Stuchell.

Darrell L. Moore, Pryor, Oklahoma, for Defendants-Appellees Corrections
Corporation of America, Inc., Michael Quinlin, Joe Hopper, and Elvis Hightower.
Before KELLY, McKAY, and MURPHY, Circuit Judges. *

KELLY, Circuit Judge.

Plaintiff-Appellant Dewey Earl Jernigan, a state inmate appearing pro se,

appeals from the district court’s order dismissing without prejudice his 42 U.S.C.

§ 1983 action for failure to exhaust administrative remedies. We have

jurisdiction under 28 U.S.C. § 1291. We affirm.

Mr. Jernigan alleges that his constitutional right of access to the courts was

violated when his personal legal materials were improperly confiscated from his

cell. Apparently, prison officials contended that Mr. Jernigan was providing legal

assistance to other inmates for compensation. The case was referred to a

magistrate judge who ordered a Martinez report. R. Doc. 21. Various Defendants

filed motions to dismiss or for summary judgment on several grounds including

lack of exhaustion of administrative remedies. Upon recommendation of the

magistrate judge, the district court dismissed the action for failure to exhaust

administrative remedies on January 22, 2002. R. Doc. 28. Mr. Jernigan then

*
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance 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.

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mailed a Motion for Clarification from the Court on February 4, 2002. R. Doc.

29. The district court ordered the Defendants to respond, particularly to Mr.

Jernigan’s arguments concerning the ODOC grievance process. R. Doc. 32.

After the Defendants’ response, the district court denied the motion for

clarification on February 20, 2002. R. Doc. 34. On January 31, 2002, Mr.

Jernigan mailed a notice of appeal from the district court’s January 22 order

dismissing the action. R. Doc. 30.

In his brief before this court, Mr. Jernigan argues that the district court

erred because he had exhausted his administrative remedies and he gave notice of

his grievance by other means. He also argues that the district court erred in its

denial of his motion for clarification, which we construe as a motion to alter or

amend pursuant to Fed. R. Civ. P. 59(e). Because Mr. Jernigan has not filed a

notice of appeal from the denial of his motion for clarification or a motion to

amend his initial notice of appeal, we consider only the January 22 judgment of

dismissal. Fed. R. App. P. 4(a)(4)(B)(ii).

We review de novo the district court’s finding of failure to exhaust

administrative remedies. Miller v. Menghini, 213 F.3d 1244, 1246 (10th Cir.

2000) overruled on other grounds by Booth v. Churner, 532 U.S. 731 (2001). The

Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), requires that

“available” administrative remedies be exhausted prior to filing an action with

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respect to prison conditions under § 1983. Even where the “available” remedies

would appear to be futile at providing the kind of remedy sought, the prisoner

must exhaust the administrative remedies available. Booth, 532 U.S. at 740

(holding that even where an inmate sought money damages and the grievance

process did not permit such awards, exhaustion was required as long as there was

authority to take some responsive action). The Court held that Congress had

eliminated both discretion to dispense with administrative exhaustion and the

condition that it be “‘plain, speedy, and effective.’” Id. See also Porter v.

Nussle, 534 U.S. 516, __, 122 S. Ct. 983, 988 (2002) (“PLRA’s exhaustion

requirement applies to all inmate suits about prison life”).

An inmate who begins the grievance process but does not complete it is

barred from pursuing a § 1983 claim under PLRA for failure to exhaust his

administrative remedies. Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir.

2001). In Wright, an inmate alleged that he had substantially complied with the

administrative procedures but did not see the process to its conclusion. The court

noted that the PLRA does not “enable[] judges, by creative interpretation of the

exhaustion doctrine, to prescribe or oversee prison grievance systems.” Id. Mr.

Wright’s suit was dismissed so that he could “exhaust ‘available’ remedies

whatever they may be.” Id.

For the same reasons, we reject Mr. Jernigan’s assertion that “[i]nmates do

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not have to properly complete the grievance process, and they do not have to

correct deficiencies.” R. Doc. 24 at 9 (emphasis in original). Nor is his argument

that he gave notice of his claims to various Defendants by means other than the

grievance process persuasive–the doctrine of substantial compliance does not

apply.

Mr. Jernigan contends that he did submit a grievance but that it was lost or

misfiled. The district court assumed for the purposes of its ruling that the

grievance was filed. Seventeen days later, when he received no response within

the fifteen day response time contained in the grievance policy, Mr. Jernigan

sought to appeal the grievance to the Director of the ODOC. The Director

rejected the appeal because there was no response from the warden and told Mr.

Jernigan that he had ten days in which to cure that deficiency. Instead of

attempting to cure, Mr. Jernigan filed this lawsuit.

While we agree that the failure to respond to a grievance within the time

limits contained in the grievance policy renders an administrative remedy

unavailable, see Lewis v. Washington, –F.3d–, No. 00-2017, 2002 WL 1843329,

at *2 (7th Cir. Aug. 14, 2002); Foulk v. Charrier, 262 F.3d 687, 698 (8th Cir.

2001); Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998), that is not what

happened here. First, Mr. Jernigan was given ten days to cure the deficiency in

question which no doubt would have involved informing prison officials of the

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lost or misfiled grievance. Second, the grievance policy contains time limits on

responses, and also provides that if an inmate does not receive a response from

the warden within thirty days after submission of the grievance, the inmate may

send the grievance with evidence of its prior submission to an administrative

review authority.

Mr. Jernigan may not successfully argue that he had exhausted his

administrative remedies by, in essence, failing to employ them and since he may

now be time barred from pursuing them, they are exhausted by default. This

would trivialize the Supreme Court’s holdings in Booth and Porter that exhaustion

is now mandatory.

Mr. Jernigan argues that the ODOC interferes with inmates pursuing

grievances by losing their paperwork. This is akin to an argument that prison

officials should be equitably estopped from relying upon the exhaustion defense.

We need not decide whether equitable estoppel applies in this context for it is

abundantly clear that Mr. Jernigan cannot show detrimental reliance on prison

officials, having been told that his grievance had been lost or misfiled and having

been given an opportunity to cure. See Lewis, 2002 WL 1843329, at *3; Emery

Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1417 (10th Cir. 1984)

(discussing elements of equitable estoppel).

AFFIRMED.

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