Davis v. Jones , 390 F. App'x 803 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
August 11, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
EZEKIEL DAVIS,
Plaintiff-Appellant,
v.
No. 10-7029
JUSTIN JONES, RANDY
(D.C. No. 6:09-CV-00092-RAW-SPS)
WORKMAN, CHIEF MEDICAL
(E.D. Okla.)
OFFICER, CHO D.O.C., CHESTER
MASON, Medical Supervisor, DR.
ELLINGTON, BRUCE WHITE, UNK,
Medical Staff for D.O.C.,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.
Ezekiel Davis is an inmate held by the Oklahoma Department of
Corrections (“ODOC”). Mr. Davis brought this pro se action under 42 U.S.C.
§ 1983 against ODOC officials who, he alleges, deprived him of his Eighth
*
After examining appellant’s brief and the 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) and 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order and judgment is not binding precedent except under the doctrines of law of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.
Amendment rights by not providing adequate mental health treatment despite
making the notation “potentially intellectually challenged” in his record when he
was taken into ODOC custody. In due course, the district court dismissed Mr.
Davis’s complaint on the ground that he failed to exhaust administrative remedies
available to him before bringing suit. We review the district court’s decision de
novo, Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002), affording Mr.
Davis the generous construction of his pleadings and other papers to which pro se
litigants are entitled, Van Deelen v. Johnson, 497 F.3d 1151, 1153 n. 1 (10th Cir.
2007). In doing so, and after a careful review of the record, we affirm.
As the district court correctly noted, under the Prison Litigation Reform
Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(a), “[i]nmates are required to exhaust
available administrative remedies, and suits filed before the exhaustion
requirement is met must be dismissed.” D.Ct. Op. at 2; Yousef v. Reno, 254 F.3d
1214, 1216 n. 1 (10th Cir. 2001). In Oklahoma, a prisoner must comply with the
“Inmate/Offender Grievance Process” (“Grievance Process”) established by
ODOC in order to effectively exhaust his administrative remedies. R. at 99-116.
In this case, Mr. Davis filed a grievance on December 8, 2008, but did not
exhaust the Grievance Process. Prison officials returned Mr. Davis’s grievance
with the instruction that it should be addressed to the Health Services office
because it concerned a medical issue. R. at 185. Mr. Davis did not comply with
this instruction, and neither did he attempt to appeal this procedural response to
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his grievance. See Grievance Process § VII.B, R. at 108. The Supreme Court has
held that to meet the PLRA’s exhaustion requirement, a prisoner must “use[ ] all
steps that the agency holds out” in “compliance with an agency’s deadlines and
other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 90 (2006)
(internal quotations omitted); see also Williams v. Franklin, 302 F. App’x 830,
831 (10th Cir. 2008) (unpublished). This Mr. Davis did not do, and so we are
obliged to conclude the district court was correct to dismiss his suit. The district
court granted Mr. Davis’s motion to proceed in forma pauperis; we pause to
remind him of his obligation to continue making partial payments until his
appellate filing fee is paid in full.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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