Ali v. Province , 550 F. App'x 619 ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 19, 2013
Elisabeth A. Shumaker
Clerk of Court
MURTAZA ALI,
Plaintiff - Appellant,
v. No. 13-6093
(D.C. No. 5:11-CV-00505-C)
GREG PROVINCE, Warden; CURTIS (W.D. Okla.)
HOOD, Chief of Security; IRENE LEE,
Coordinator Faith Based Program;
STEVE MOLES, Unit Manager;
CAROL DEBOE, Case Manager;
DAVID MILLER, Warden; DEAN
CALDWELL, Deputy Warden,
Defendants - Appellees,
and
JUSTIN JONES, Director DOC; BOBBY
BOONE, Deputy Director; DEBBIE
MORTON, Director’s Designee; BRAD
JOHNSON, Chaplain; JANET CAVE,
Policy and Procedure; LISA FORD,
Kitchen Manager; DAVID MUSTAIN,
Vice President GEO Group; RENEE
WATKINS, Administrator Private
Prisons; DAN BUTLER, Chief of
Security; RAMONA HOLLIER, Contract
Monitor; ROCKY CANTWELL,
STG Officer; DAVID CLARK,
Grievance Officer; SABINE HILDNER,
RHU Officer; JANE DOE, Fleener and
Halvorson, Medical Supervisor; JANE
DOE, Roody, RHU SGT; JOHN DOE,
Tinker, Chaplain; JOHN DOE, Internal
Affairs; ALICIA MADDOCKS, Internal
Affairs Officer ODOC; JOHN DOE,
ODOC Legal; BILLY GIBSON,
Warden’s Assistant; DENISE WALKER,
Parole Investigator; MELISSA
HALVERSON, Medical Supervisor;
RICHARD TINKER, Chaplain;
RONALD ANDERSON, Legal Counsel,
Defendants.
ORDER AND JUDGMENT*
Before GORSUCH, ANDERSON, and HOLMES, Circuit Judges.
Murtaza Ali, an Oklahoma state prisoner, wrote to the administrator of the
prison’s faith-based program asking if she was a lesbian. Mr. Ali says he needed to
know before applying to participate in the prison’s faith-based programs because
taking instruction from a homosexual would violate his Muslim faith. He says, too,
that the defendants (prison officials all) proceeded to retaliate against him for his
inquiry — retaliation that, Mr. Ali says, violated his First Amendment rights and led
him to file this lawsuit pursuant to 42 U.S.C. § 1983.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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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When the defendants moved for summary judgment, however, Mr. Ali didn’t
respond. His counsel repeatedly sought and received more time to reply, but when
three months passed after the last deadline still without word from Mr. Ali or his
counsel, the magistrate judge issued a report and recommendation suggesting
dismissal. The magistrate judge suggested dismissal on the ground that the
defendants had presented undisputed evidence proving that Mr. Ali failed to exhaust
his administrative remedies before filing his lawsuit. Exhaustion of administrative
remedies is, of course, a precondition to suit under the Prisoner Litigation Reform
Act (PLRA) and “unexhausted claims cannot be brought in court.” Thomas v. Parker,
609 F.3d 1114, 1117 (10th Cir. 2010). Alternatively, the magistrate judge
recommended dismissal for certain defendants pursuant to the Eleventh Amendment,
see Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006), and dismissal for
other defendants because they had not personally participated in the challenged
actions, an essential element in a § 1983 claim, see Mitchell v. Maynard, 80 F.3d
1433, 1441 (10th Cir. 1996).
The district court, in turn, adopted the report and recommendation over Mr.
Ali’s objections and granted summary judgment to all defendants. In reply, Mr. Ali
filed a motion to set aside the judgment under Fed. R. Civ. P. 60(a) and (b). He
argued that he had failed to respond to the summary judgment motions only because
of his attorney’s deficient representation. The district court denied the motion,
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explaining that counsel’s performance could not have altered an outcome inevitably
and unavoidably mandated by law.
Now before us, Mr. Ali argues that the magistrate judge abused his discretion
by failing to issue a show cause order before filing his report and recommendation.
With this, however, we cannot agree. The magistrate judge repeatedly granted
Mr. Ali and his counsel extra time to respond to the defendants’ motion for summary
judgment, warned them in the last extension order that further extensions of time
would not be favored, and waited an additional three months after the final deadline
before issuing the report and recommendation, at which time the summary judgment
motions had been pending for six months. The magistrate judge was not required to
issue Mr. Ali a show cause order in these circumstances and we find no abuse of
discretion in his course of conduct.
Alternatively, Mr. Ali argues that summary judgment was inappropriate
because he substantially complied with PLRA’s exhaustion requirement. The record,
however, shows otherwise. Though some of Mr. Ali’s proffered evidence (all of
which was, again, untimely submitted after the magistrate’s report and
recommendation) suggests that he began the grievance process as to some claims,
that same evidence also suggests he failed to correct cited procedural defects in his
grievance forms. And it is settled law that “[a]n 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.” Thomas, 609 F.3d at 1118
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(internal quotation marks omitted) (finding a failure to exhaust where inmate failed to
cure noted deficiencies in his grievance forms).
To this, Mr. Ali replies that in January 2011 he was on “Grievance
Restrictions,” and thus unable to correct his defective grievance forms. But by that
date the time for correcting his grievance had already come and gone. Neither does
Mr. Ali explain any reason why he could not have corrected his grievances before
January 2011. So all this turns out to help his cause not at all.
At the end of the day, we can report that we have carefully reviewed the
record, including all of Mr. Ali’s untimely-submitted materials, and find that even in
light of these materials Mr. Ali has still failed to demonstrate he properly exhausted
any of his claims or any disabling impediment precluding him from doing so. Given
this, the district court could not have erred in dismissing Mr. Ali’s claims against all
of the defendants for failure to exhaust. And because no unexhausted claim can be
considered by a court, Thomas, 609 F.3d at 1117, Mr. Ali’s remaining challenges to
the district court’s actions, including its grant of summary judgment and its rejection
of his Rule 60 motion must, of necessity, also fail.
Mr. Ali’s motion to proceed on appeal without prepayment of costs and fees is
granted. He is reminded that he is obligated to continue making partial payments
until the entire obligation is paid. The judgment of the district court is affirmed for
substantially the reasons stated in the magistrate judge’s report and recommendation,
dated February 19, 2013; the district court’s order adopting the report and
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recommendation, dated March 15, 2013; and the district court’s order denying Ali’s
Rule 60 motion, dated April 3, 2013.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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