Campbell v. Jones

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

FOR THE TENTH CIRCUIT April 12, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
MICHAEL A. CAMPBELL,

Plaintiff - Appellant,

v. No. 16-6287
(D.C. No. 5:13-CV-00926-R)
JODY JONES, in her official and (W.D. Okla.)
individual capacities; NADINE
KELLOGG, in her official and individual
capacities; REBECCA MAKER, in her
official and individual capacities,

Defendants - Appellees.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before KELLY, MATHESON, and McHUGH, Circuit Judges.
_________________________________

Michael A. Campbell, a pro se Oklahoma inmate, filed this 42 U.S.C. § 1983

action, claiming prison officials violated his constitutional rights by withholding his

medication and denying him treatment after he suffered a stroke. The district court

granted defendants summary judgment, ruling that Mr. Campbell failed to exhaust his

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

*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
 I

The administrative grievance process for Oklahoma prisoners is well documented.

It requires an “informal consultation with staff, then three written steps: a Request to

Staff form, a formal grievance, and an appeal to the administrative review authority

[ARA].” Thomas v. Parker, 609 F.3d 1114, 1117 (10th Cir. 2010). Appeals to the

ARA, which includes the chief medical officer (CMO), complete the administrative

grievance process. Little v. Jones, 607 F.3d 1245, 1249 & n.3 (10th Cir. 2010).

Inmates facing a “substantial risk of personal injury or other irreparable harm” may

submit an emergency grievance directly to the reviewing authority, R., Vol. 2 at 200

(Okla. Dep’t of Corr. (ODOC) Offender Grievance Process OP-090124 § VIII.A),

which is “[t]he facility head or facility correctional health services administrator

(CHSA),” id. at 188 (Offender Grievance Process OP-090124 § I.E).

II

Mr. Campbell has high blood pressure. On December 30, 2012, his cell flooded

with sewage, forcing him to evacuate and abandon his blood-pressure medication. After

six days of unsuccessfully requesting replacement medication from the prison’s medical

staff, specifically defendants Maker and Kellogg, Mr. Campbell suffered a stroke. He

was hospitalized for three days and discharged back to prison with new prescriptions and

instructions to follow-up with the prison’s doctor. Thirteen days later, however, he still

had not been seen for a follow-up or been given his replacement medication.

Consequently, on January 22, 2013, Mr. Campbell submitted a detailed, two-page

emergency grievance to the CMO, Genese McCoy, explaining his circumstances and

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asking that he be treated in accord with his discharge instructions.1 He also asked that the

prison’s medical staff be made to understand that withholding his medication caused him

to suffer a stroke and was endangering his life. Last, he asked that defendants be

terminated. The CMO returned the grievance unanswered, stating it was not an

emergency, it sought disciplinary action against the staff (which could not be addressed

through the grievance process), and it should have been submitted to the facility’s CHSA,

defendant Jody Jones.

Given this latter directive, Mr. Campbell sent Ms. Jones, the CHSA, a Request to

Staff on January 31, asking that she implement a policy to ensure that prisoners receive

their medication to avoid “an unnecessary stroke like what happened to me.” R., Vol. 1

at 63. Ms. Jones replied, “Medication administration policy exists.” Id.

Dissatisfied with this response, Mr. Campbell submitted a nearly identical copy of

his emergency grievance to the prison’s warden on February 12, seeking to implement

the same policy he sought in his Request to Staff. The warden’s designee returned the

grievance unanswered, stating it should have been filed with the prison’s CHSA,

Ms. Jones.

1
By this date, January 22, Mr. Campbell had filed three other documents that
did not advance his efforts to exhaust. On January 2, he filed a request for medical
services, asking for a knee brace and replacement medication. He was told that
replacement medication was forthcoming. On January 10, he submitted a Request to
Staff, seeking to implement a policy to ensure nurses did not withhold high-blood
pressure medication and urging that defendant Maker be terminated. The Request to
Staff was returned unanswered because it sought disciplinary action against a staff
member, which could not be addressed through the grievance process. On
January 14, Mr. Campbell submitted a Request to Staff, seeking the name of a staff
member who was involved with his care. The Request to Staff was answered that
same day.
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 Mr. Campbell therefore submitted his grievance to Ms. Jones on February 18. She

returned it unanswered for two reasons, the second of which was invalid: First, she

wrote, “No additional pages allowed except for the original ‘Request to Staff.’” Id. at 68.

Second, she wrote, “All medical grievances will be submitted to the facility CHSA,” id.,

which it clearly was. Also, Ms. Jones warned him that he could be subject to grievance

restrictions and, in a separate correspondence, she stated that because he failed to rectify

the procedural errors in his grievance—apparently by failing to remove any additional

pages—he “waived/forfeited the opportunity to proceed in the grievance process” under

Offender Grievance Process OP-090124 § VI.B.6, id. at 70. This was incorrect, however,

because the only previously identified procedural error was Mr. Campbell’s mistake in

sending his February 12 grievance to the warden rather than the CHSA, which he

corrected. In any event, Mr. Campbell resubmitted his grievance to Ms. Jones, prompting

her to impose grievance restrictions under Offender Grievance Process OP-090124 § IX.

It is undisputed that Mr. Campbell did not submit a final grievance appeal to the CMO.

A magistrate judge determined that, under these circumstances, there was an

inference that the final stage of the grievance process was unavailable. The district court

declined to adopt that conclusion, however, ruling that Ms. Jones’ error in rejecting

Mr. Campbell’s grievance did not render the final administrative appeal stage unavailable

and Mr. Campbell’s failure to pursue it demonstrated that he failed to exhaust. The court

therefore granted summary judgment to defendants on exhaustion grounds, and

Mr. Campbell appealed.

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 III

“We review summary judgment decisions de novo, applying the same legal

standard as the district court.” Tuckel v. Grover, 660 F.3d 1249, 1251 (10th Cir.

2011) (internal quotation marks omitted). “Summary judgment is appropriate when

there is no genuine issue of material fact and the movant is entitled to judgment as a

matter of law.” Id. (internal quotation marks omitted). Because Mr. Campbell is

pro se, we afford his materials a liberal construction but do not act as his advocate.

See United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).

“There is no question that exhaustion is mandatory under the Prison[]

Litigation Reform Act (PLRA) and that unexhausted claims cannot be brought in

court.” Thomas, 609 F.3d at 1117 (brackets and internal quotation marks omitted).

Exhaustion is required “[e]ven where the ‘available’ remedies would appear to be

futile at providing the kind of remedy sought.” Jernigan v. Stuchell, 304 F.3d 1030,

1032 (10th Cir. 2002). Remedies are unavailable if prison officials are “unable or

consistently unwilling to provide any relief,” if “no ordinary prisoner can make sense

of what [the grievance process] demands,” or if “administrators thwart inmates from

taking advantage of a grievance process through machination, misrepresentation, or

intimidation.” Ross v. Blake, 136 S. Ct. 1850, 1859-60 (2016). “[P]risoners must

complete the administrative review process in accordance with the applicable

procedural rules[]—rules that are defined not by the PLRA, but by the prison

grievance process itself.” Thomas, 609 F.3d at 1118 (internal quotation marks

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omitted). “An inmate who begins the grievance process but does not complete it is

barred from pursuing a § 1983 claim . . . .” Jernigan, 304 F.3d at 1032.

Our review of the record confirms that Mr. Campbell failed to exhaust his

administrative remedies. Although Ms. Jones rejected his February 18 grievance and

incorrectly stated that he waived or forfeited his participation in the grievance

process, Mr. Campbell did not avail himself of a final appeal to the CMO, who might

have rectified the error and granted his requests. See Woodford v. Ngo, 548 U.S. 81,

89 (2006) (“Exhaustion gives an agency an opportunity to correct its own mistakes

with respect to the programs it administers before it is haled into federal court . . . .”

(internal quotation marks omitted)); see also R., Vol. 2 at 197 (Offender Grievance

Procedure OP-090124 § VII.A.2 (stating that an “offender may appeal . . . [p]robable

error committed by the reviewing authority.”)). Nor did he challenge Ms. Jones’

imposition of restrictions, which also was appealable. See R., Vol. 2 at 202 (Offender

Grievance Procedure OP-090124 § IX.A.2) (“If the determination of abuse of the

process is taken at the first level of review, the action is appealable to the appropriate

administrative review authority.”). Mr. Campbell failed to avail himself of these

remedies, and his failure to complete the grievance process demonstrates he did not

exhaust. See Jernigan, 304 F.3d at 1032.

Mr. Campbell offers three arguments for excusing his failure to complete the

grievance process. He first relies on his emergency grievance, arguing that his only

option was to file the emergency grievance with Ms. McCoy, the CMO, and once she

rejected it, he exhausted his remedies because any appeal to her would have been

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futile and redundant. But there is no futility exception to the exhaustion rule, see

Booth v. Churner, 532 U.S. 731, 741 n.6 (2001), and there would have been no

redundancy if Mr. Campbell had submitted his emergency grievance to the reviewing

authority, Ms. Jones—the CHSA, rather than the CMO, as provided by OP-090124

§ VIII.A, see R., Vol. 2 at 200 (“[Emergency g]rievances may be submitted directly

to the reviewing authority . . . .”).2 Under those circumstances, an unfavorable

response would have been appealable to the CMO pursuant to OP-090124

§ VIII.B-C. Mr. Campbell’s failure to follow these procedural directives does not

excuse him from them. See Little, 607 F.3d at 1249 (“[A]n inmate may only exhaust

by properly following all of the steps laid out in the prison system’s grievance

procedure.” (emphasis added)).

Second, Mr. Campbell recites a portion of the magistrate judge’s report and

recommendation, which concluded there was an inference that defendants thwarted

his efforts to exhaust the final appeal stage of the administrative process. The

magistrate judge reasoned that Ms. Jones gave an invalid reason for denying the

February 18 grievance, refused to allow Mr. Campbell to resubmit it, stated he

waived or forfeited his participation in the grievance process, and threatened to

2
There is an option for filing an emergency grievance directly with the ARA
or CMO “[i]f the complaint involves the reviewing authority and is of a sensitive
nature.” R., Vol. 2 at 200 (Offender Grievance Process OP-090124 § VIII.A.4).
Although Mr. Campbell references this provision, he offers no developed argument
as to how he invoked or satisfied it, nor does he cite anything in the record indicating
that he previously raised such an argument. See Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 840 (10th Cir. 2005) (“[T]he court cannot take on the
responsibility of serving as the [pro se] litigant’s attorney in constructing arguments
and searching the record.”).
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impose grievance restrictions (in fact, she eventually did impose restrictions).

Mr. Campbell seems to suggest this all rendered the final appeal stage unavailable

under our decisions in Little and Tuckel v. Grover, 660 F.3d 1249 (10th Cir. 2011),

but we disagree.

As the district court correctly explained, Mr. Campbell’s failure to pursue a

final appeal with the CMO distinguishes his case from Little, where the inmate took

the final appeal to the ARA and the ARA incorrectly rejected it, 607 F.3d at 1248,

1250. Under those circumstances, we stated that “[b]ecause the ARA exceeded its

authority when it rejected [the] grievance appeal, it rendered that final step of

exhaustion unavailable.” Id. at 1250. Mr. Campbell, however, never appealed to the

CMO. Nor is his case similar to Tuckel, where a prison official apparently

recommended that several inmates assault the plaintiff in retaliation for filing a

grievance. 660 F.3d at 1251. We recognized that “when a prison official inhibits an

inmate from utilizing an administrative process through threats or intimidation, that

process can no longer be said to be ‘available.’” Id. at 1252-53. But here, there is no

evidence that officials attempted to threaten, intimidate, or confuse Mr. Campbell.

Ms. Jones gave an invalid reason for denying a grievance and incorrectly attempted

to exclude him from the administrative process. These decisions were appealable,

and nothing prevented Mr. Campbell from challenging them.

Finally, Mr. Campbell offers a hybrid of his first two arguments, asserting his

remedies were unavailable under Ross v. Blake, 136 S. Ct. 1850, 1859-60 (2016), and

his emergency grievance to the CMO satisfied the final step of ODOC’s grievance

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policy. But he offers nothing to satisfy Ross’s criteria for deeming remedies

unavailable, and we decline to interpret Ms. Jones’ mistakes as an affirmative effort

to thwart the process.

As for Mr. Campbell’s emergency grievance, it should have been filed with the

CHSA. See R., Vol. 2 at 200 (Offender Grievance Process OP-090124 § VIII.A). To

the extent he insists that ODOC’s process “allows an alternative final step which

provides (either or) an appeal to the Administrative Review Authority or to the Chief

Medical Official,” Aplt. Br. at 3T, that option exists in the normal, non-emergency

grievance procedure, see R., Vol. 2 at 197 (Offender Grievance Process OP-090124

§ VII.B (“The offender may make a final appeal to the administrative review

authority or chief medical officer, whichever is appropriate . . . .”)).

Mr. Campbell has filed a motion to supplement the record to support his

assertion that an emergency grievance submitted directly to the CMO concludes the

administrative process. He seeks to supplement the record with an excerpt of

ODOC’s updated emergency grievance process and another inmate’s grievance

material, specifically a letter from ODOC’s medical services manager. These

materials fail to establish that Mr. Campbell’s emergency grievance exhausted his

remedies. The updated ODOC policy was inapplicable at the time Mr. Campbell

filed his grievance, and the excerpt of that policy is substantively identical to the

governing provisions here. Moreover, the letter states that the inmate filed a

“Misconduct/Grievance Appeal to Administrative Review Authority” concerning a

complaint raised in an “emergency grievance.” Mot. to Supp. at 4. The appeal was

9
returned unanswered in part because “[t]he medical administrative reviewing

authority’s ruling is final.” Id. Mr. Campbell says this proves he was not required to

appeal the CMO’s ruling, but this letter does not indicate whether the inmate’s

grievance was denied as a non-emergency, as Mr. Campbell’s was, or whether it was

resolved on some other basis. The letter is not probative of Mr. Campbell’s situation

and does not demonstrate that he exhausted his administrative remedies.

IV

The judgment of the district court is affirmed. The motion to supplement the

record is granted. Mr. Campbell’s motion to proceed on appeal without prepayment

of costs and fees is granted. The relevant statute, 28 U.S.C. § 1915(a)(1), does not

permit litigants to avoid payment of filing and docketing fees, only prepayment of

those fees. Although we have disposed of this matter on the merits, Mr. Campbell

remains obligated to pay all filing and docketing fees. He is directed to continue

making partial payments until all fees have been paid in full.

Entered for the Court

Paul J. Kelly, Jr.
Circuit Judge

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