Davis v. Bruce , 172 F. App'x 223 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 22, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
ANTHONY L. DAVIS,
Plaintiff - Appellant,
v.
No. 05-3197
LOUIS E. BRUCE, Warden, (D. Kansas)
Hutchinson Correctional Facility, in (D.Ct. No. 05-CV-3112-GTV)
his individual and official capacity;
DAVID McKUNE, Warden, Lansing
Correctional Facility, in his individual
and official capacity; ROGER
WERHOLTZ, Secretary of
Corrections, Kansas Department of
Corrections, in his individual and
official capacity; WILLIAM L.
CUMMINGS, Corrections Manager,
Risk Management, Kansas Department
of Corrections, in his individual and
official capacity; DAVID RIGGIN,
Classification Manager, Kansas
Department of Corrections, in his
individual and official capacity;
COLENE FISCHLI; MARILYN
SCAFE; PAUL FELECIANO;
ROBERT SANDERS; JERRY WILLS,
Kansas Parole Board, in their
individual and official capacities;
(FNU) WINKLEBAUER,
Classification Administrator, Lansing
Correctional Facility, in her individual
and official capacity; STEVE LAWN;
TABER MEDILL, Unit Team
Managers, in their individual and
official capacities; CAROLYN
BEIER-WEIR; BENARD JARVIS;
(FNU) TORGRIMSON, Unit Team
Managers, Hutchinson Correctional
Facility, in their individual and
official capacities; (FNU) BAKER,
Correctional Officer, Lansing
Correctional Facility, in his individual
and official capacity; KATHLEEN
SEBELIUS, Governor, in her
individual and official capacity,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.
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.
Anthony L. Davis, appearing pro se, 1 filed this section 1983 action seeking
damages and injunctive relief based upon conditions of his confinement. The
*
This order and judgment is not binding precedent except under the doctrines of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.
1
We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
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district court determined that he failed to fully exhaust his administrative
remedies and allowed him the opportunity to supplement his complaint. He did
so, but inadequately. The district court held “there is no showing that [Davis]
pursued administrative review of this claim through the formal grievance
procedure” and dismissed his complaint without prejudice under 42 U.S.C. §
1997e(a) of the Prison Litigation Reform Act (PLRA). 2 (R. Doc. 9 at 3.) Rather
than refile after documenting full exhaustion of administrative remedies, Davis
appealed from the district court’s order. 3
Our review of a dismissal under the PLRA for failure to exhaust
administrative remedies is de novo. Jernigan v. Stuchell, 304 F.3d 1030, 1032
(10th Cir. 2002). The PLRA “directs that ‘[n]o action shall be brought with
respect to prison conditions’ until a prisoner exhausts his available administrative
remedies.” Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1206 (10th Cir.
2
42 U.S.C. § 1997e(a) provides:
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.
3
Although the district court dismissed Davis’ complaint without prejudice, we
have jurisdiction over this appeal because the dismissal disposed of the entire case.
Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1275 (10th Cir. 2001). We have
routinely entertained appeals from district courts’ dismissals of claims without prejudice
for failure to exhaust under the PLRA. See, e.g., Ross v. County of Bernalillo, 365 F.3d
1181, 1189 (10th Cir. 2004).
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2003) (quoting 42 U.S.C. § 1997e(a)), cert. denied, 543 U.S. 925 (2004).
“[E]xhaustion [is] ‘mandatory’ for all ‘inmate suits about prison life.’” Id. at
1207 (quoting Porter v. Nussle, 534 U.S. 516 (2002)). “[A] prisoner must plead
exhaustion in his complaint,” id. at 1209, and “either attach copies of
administrative proceedings or describe their disposition with specificity.” Id. at
1211. “If a prisoner . . . submit[s] a complaint containing one or more
unexhausted claims, the district court ordinarily must dismiss the entire action
without prejudice.” Ross, 365 F.3d at 1190.
Davis clearly filed this action in the district court without pleading
exhaustion of administrative remedies. In his filing with this court, Davis argues
the merits of his case, and in a summary and conclusory fashion, without citation
of authority or record references, quarrels with the district court’s conclusions.
This is insufficient. See United States v. Rodriguez-Aguirre, 108 F.3d 1228, 1237
n.8 (10th Cir. 1997); Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995).
The district court properly dismissed Davis’ complaint without prejudice.
AFFIRMED.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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