Forbes v. Garcia ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 23, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JASON FORBES,
Plaintiff - Appellant,
v. No. 17-1012
(D.C. No. 1:15-CV-01860-MEH)
GARCIA, Deputy, EID #13141; (D. Colo.)
YOSHIMIYA, Deputy, EID #13080;
GONZALES, Deputy, EID #07092,
Defendants - Appellees,
and
C. JOHNSON, Deputy, EID #13095;
CHOAFE, Deputy, EID #12023;
WILLIAM WEBSTER, Deputy,
Defendants.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before LUCERO, HOLMES, and BACHARACH, Circuit Judges.
_________________________________
*
The plaintiff asks us to decide the appeal based on the briefs because
his hearing impairment would impede oral argument. In light of the
plaintiff’s stated preference, we have decided not to require oral argument.
See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
This appeal involves exhaustion of administrative remedies. The case
itself grew out of a prisoner’s allegations of excessive force in a county
jail and at a county courthouse. The district court concluded that the claims
were unexhausted and granted the defendants’ motion for summary
judgment. The plaintiff appeals and seeks leave to proceed in forma
pauperis. We grant leave to proceed in forma pauperis, but we affirm the
award of summary judgment.
Leave to proceed in forma pauperis. The plaintiff lacks sufficient
funds to prepay the filing fee, and his appeal is not frivolous. As a result,
we grant leave to proceed in forma pauperis.
Award of summary judgment to the defendants. We also affirm the
award of summary judgment because the plaintiff’s claims are
unexhausted.
The Prison Litigation Reform Act requires exhaustion of
administrative remedies. Thomas v. Parker, 609 F.3d 1114, 1117 (10th Cir.
2010). To comply with this requirement, the prisoner must comply with all
of the prison’s procedures. Little v. Jones, 607 F.3d 1245, 1249 (10th Cir.
2010). Identifying these procedures requires us to consider the inmate
handbook. See Jones v. Bock, 549 U.S. 199, 218 (2007) (“The level of
detail necessary in a grievance to comply with the grievance procedures
will vary from system to system and claim to claim, but it is the prison’s
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requirements, and not the PLRA, that define the boundaries of proper
exhaustion.”).
The inmate handbook identified a process with three steps. The first
step consisted of informal discussion with the deputy, sergeant, or shift
supervisor. The second step involved the filing of a formal grievance
within five working days of the incident, with specific details such as the
date, time, and location. The third step involved an appeal to a staff
member.
The district court concluded that the plaintiff had failed to complete
these steps. In considering this conclusion, we engage in de novo review, 1
drawing all reasonable inferences and resolving all factual disputes in
favor of the plaintiff. Yousuf v. Cohlmia, 741 F.3d 31, 37 (10th Cir. 2014).
As discussed above, the first alleged incident took place at the
county jail. For this incident, the plaintiff requested medical treatment but
did not file a formal written grievance about the use of excessive force.
See, e.g., Plaintiff’s Reply Br. at 2 (“Even though plaintiff did not give a
verbatim format of the grievances in his declaration he stated it was in
regards to claim #1 and 4 which the district court review to depict
excessive force.”). He did refer to the incident in a grievance, but the
1
The plaintiff also contends that the district court incorrectly accepted
the defendants’ account of the medical care that was provided. For the sake
of argument, we have disregarded the district court’s account of the
medical care provided to the plaintiff.
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grievance itself involved the failure to provide a refund for a pizza. There
was insufficient information in the grievance about the use of excessive
force. Thus, the district court correctly granted summary judgment to the
defendants on this claim.
The second alleged incident involved an assault at the county
courthouse. For this incident, the plaintiff asked only about medical
treatment and did not submit a grievance discussing the use of force.
Roughly three months after the alleged incident, he was asked who
had provided his medical care. In answering, the plaintiff mentioned an
unnamed deputy’s use of excessive force. This answer lacked the necessary
specificity and was made outside the five-day deadline for grievances.
Thus, the district court correctly granted summary judgment to the
defendants on this claim.
Affirmed.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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