Walters v. Tugle , 65 F. App'x 709 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 6 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
CORTEZ DORNELL WALTERS,
Plaintiff - Appellant,
v.
TERRY TUGLE; T. BUTLER; JOHN No. 03-7005
DOE, Mail Room Worker; ERICK (D.C. No. 02-CV-197-P)
FRANKLIN; SGT. TAYLOR; (E. District of Oklahoma)
BUFFERY GUTHRIE; YATES,
Counselor; CLIFF HARRIS; PHYLLIS
COLLINS; OFFICER WOFFORD;
OFFICER SCOGGINS,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before KELLY, BRISCOE, and LUCERO, Circuit Judges.
Cortez Dornell Walters, an Oklahoma prisoner proceeding pro se, appeals
the district court’s dismissal without prejudice of his 42 U.S.C. § 1983 suit for
*
The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
failure to exhaust available administrative remedies. We exercise jurisdiction
under 28 U.S.C. § 1291 and affirm.
This case has a lengthy factual history, set forth by the district court in its
Order of January 9, 2003, and we repeat here only those facts necessary to an
understanding of the background of this case. In November of 2000, Walters
received an offense report for “Individual Disruptive Behavior” based on a
positive drug urinalysis. Walters v. Tugle, No. CIV-02-197-P, slip op. at 2 (E.D.
Okla. Jan. 9, 2003). Although he was given a copy of the specimen report, he
claims that he was not provided with a copy of allegedly exculpatory evidence
reports. He further contends that although his signature is on the investigator’s
report, indicating that he had in fact been provided with all reports, it was a
forgery. At his disciplinary hearing on December 7, Walters was found guilty of
Individual Disruptive Behavior, resulting in fifteen days of disciplinary
segregation, loss of visitation for forty-five days, and loss of 180 earned credits.
At a subsequent rehearing, Walters was again found guilty. Walters did not
timely appeal this decision through the administrative appeals process. 1
1
Although Walters had fifteen days to appeal his misconduct conviction,
he failed to do so. He later filed a grievance, which was returned to him advising
him that the misconduct appeal procedure, and not the grievance procedure, was
the appropriate avenue to appeal a misconduct conviction. Walters subsequently
filed a grievance with the Department of Corrections’ Administrative Review
Authority in the Director’s Office, but it was returned to him for failure to comply
(continued...)
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In July of 2001, Walters filed the instant § 1983 suit, alleging a variety of
constitutional violations stemming from this incident and other occurrences
during his incarceration. In dismissing Walter’s suit, the district court found that
Walters failed to exhaust his administrative remedies and presented no legitimate
reason for not doing so.
We review de novo a dismissal for 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). Pursuant to the
Prison Litigation Reform Act of 1995, prisoners bringing suit under § 1983 must
first exhaust available administrative remedies before seeking relief in federal
court. See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to
prison conditions under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.”). Full exhaustion of
available remedies is required regardless of the nature of the relief sought.
Booth, 532 U.S. at 741.
We have carefully reviewed Walter’s appellate brief, the district court’s
order, and the material portions of the record on appeal, and agree that Walters
1
(...continued)
with the grievance procedure rules. Walters was given ten days to submit a
proper grievance appeal, but failed to do so.
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has failed to exhaust his available administrative remedies. Nowhere in the
record is there evidence that Walters properly used the available prison grievance
process to make his constitutional claims. Accordingly, we AFFIRM. 2 Walters
is reminded to make partial payments until the entire appellate filing fee is paid in
full.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
2
We DENY Walter’s “Application for Settlement Request,” in which he
proclaims his willingness to settle with the defendants for twenty-five-thousand
dollars.
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