Mitchell v. Ashcroft ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 9, 2005
FOR THE TENTH CIRCUIT
Clerk of Court
RONALD MITCHELL,
Plaintiff-Appellant,
v. No. 04-1415
JOHN ASHCROFT, Attorney General; (D.C. No. 03-WM-586 (PAC))
BRUCE REPPERT, Assist. U.S. (D. Colo.)
Attorney, S.D. Ill.; G. L.
HERSHBERGER, Director, BOP,
NCRO; MRS. CARNEY, Unit
Manager, FCI Greenville; CRAIG
LAMBERT, Attorney, Little Rock,
AR.; HARLIN LAPPIN, Dir., BOP;
ROB MUNDT, BOP North Central
Reg. Office; MICHAEL JOHNSON;
DR. POLLAND, USP Florence,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before KELLY, McKAY , and McCONNELL , 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This order and judgment is not binding precedent, except under the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.
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.
Ronald Mitchell, appearing pro se, appeals from the district court’s order
dismissing his federal prisoner civil rights action. The district court made the
following rulings in its order: dismissed claim one against defendants Ashcroft,
Johnson and Reppert for lack of personal jurisdiction; dismissed claim two
against defendants Lappin, Hershberger and Mundt for lack of personal
jurisdiction, against defendants Ashcroft, Carney, Johnson and Reppert for failure
to exhaust administrative remedies, and against defendant Lambert for failure to
state a claim; dismissed claim three against defendants Lappin and Mundt for lack
of personal jurisdiction; dismissed claim four against defendant Polland for
failure to exhaust administrative remedies; and dismissed claim five against
defendants Ashcroft, Johnson, Lappin and Reppert for lack of personal
jurisdiction. Mr. Mitchell argues that the district court erred by: construing his
motion to convene a grand jury as a Bivens complaint; dismissing his claims for
failure to exhaust administrative remedies; dismissing his claims for failure to
state a claim; dismissing his claim for deliberate indifference to medical needs;
dismissing his claim against defendant Carney; and dismissing his conspiracy
claim against defendant Lambert.
-2-
When reviewing a dismissal for lack of personal jurisdiction, “we resolve
all factual disputes in favor of [the plaintiff] and review the district court’s
jurisdictional ruling de novo.” Omi Holdings, Inc. v. Royal Ins. Co. of Canada ,
149 F.3d 1086, 1091 (10th Cir. 1998). We review de novo the district court’s
dismissal for failure to state a claim, Sutton v. Utah State School for the Deaf and
Blind , 173 F.3d 1226, 1236 (10th Cir. 1999), and the district court’s dismissal for
failure to exhaust administrative remedies, Ross v. County of Bernalillo , 365 F.3d
1181, 1185 (10th Cir. 2004).
We have carefully reviewed the record, Mr. Mitchell’s brief, the district
court’s order, and the applicable law. With respect to Mr. Mitchell’s first
argument, although the district court initially instructed plaintiff that his motion
to convene a grand jury should be brought as a civil action and directed him to
file a complaint, the court also subsequently ruled on his motion. The original
motion was denied on December 17, 2003, see R. Doc. 62, and a second motion to
convene a grand jury was denied on April 2, 2004, see id. at 87. The district
court did not err in its treatment of Mr. Mitchell’s motion to convene a grand
jury. With regard to the remaining issues on appeal, we affirm substantially for
the reasons set forth in the district court’s order entered August 30, 2004.
-3-
Mr. Mitchell filed a motion for leave to proceed on appeal without
prepayment of costs or fees. This court initially ordered him to pay partial
payments pending the resolution of his motion. Mr. Mitchell’s motion is
-4-
DENIED, and he is ordered to make immediate payment of any unpaid balance
due. The judgment of the district court is AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
-5-