Queen v. McIntire ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 25, 2008
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
SAMUEL ROBERT QUEEN,
Plaintiff-Appellant,
v.
EDWARD McINTIRE, Senior
Correctional Officer, USP-
Leavenworth, in his individual
capacity; JAMES THOMACEE,
Senior Correctional Officer, USP-
Leavenworth, in his individual
capacity; BRET JESTES, Senior
Correctional Officer, USP-
Leavenworth, in his individual
capacity; C. GOODWIN, Senior
Correctional Officer, USP-
Leavenworth, in his individual
capacity; MICHAEL GRAY, Senior No. 08-3058
Correctional Officer, USP- (D.C. No. 05-CV-3275-SAC)
Leavenworth, in his individual (D. Kan.)
capacity; STEVEN LACY,
Disciplinary Hearing Officer, USP-
Leavenworth, in his individual
capacity; D. WITTLAUFER,
Lieutenant, Senior Correctional
Officer, USP-Leavenworth, in his
individual capacity; G. L.
HERSHBERGER, Regional Director,
in his individual capacity; JOHN
CHILDS, Counselor, Senior
Correctional Officer, USP-
Leavenworth, in his individual
capacity; E. J. GALLEGOS, Warden,
USP-Leavenworth, in his individual
capacity; MICHAEL MILDER, Unit
Manager, USP-Leavenworth, in his
individual capacity; MICHAEL
NALLEY, Regional Director, USP-
Leavenworth, in his individual
capacity,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.
Samuel Robert Queen, a federal prisoner proceeding pro se, appeals the
district court’s dismissal of his lawsuit against several prison guards and officials
at the United States Penitentiary in Leavenworth, Kansas, alleging violations of
his First, Fourth, Fifth, Eighth and Fourteenth Amendment rights. Defendants
moved to dismiss on a variety of grounds. The district court ultimately granted
the motion on the basis that he failed “to exhaust administrative remedies
properly under 42 U.S.C. § 1997e.” We review this decision de novo. Jernigan
v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). Given that Mr. Queen is
proceeding pro se, we review his pleadings and other papers liberally. Van
Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
*
This order and judgment is not binding precedent except under the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.
-2-
Even with these standards firmly in mind, we are compelled to agree with
the district court. As defendants have pointed out, and the district court found,
of the twelve administrative grievances filed by Mr. Queen, all but one was
rejected for Mr. Queen’s failure to follow appropriate procedural steps. R., Doc.
42 at 9-14. Mr. Queen’s own evidence demonstrates that he knew his complaints
were rejected as being procedurally deficient, but he still failed to pursue
administrative appeals or correct identified errors. See R., Doc. 48, Exs. 2-6, 12,
13,16; Doc. 42, Exs. 1-4. With respect to his single procedurally effective claim,
after Mr. Queen received an adverse response from the warden it is undisputed
that he failed to pursue the matter through the administrative appellate
mechanisms available to him. R., Doc. 42 at 10, Ex. 1.
Mr. Queen replies before us, as he did in the district court, that he should
be excused from the exhaustion requirements because defendants made the
grievance process “unavailable” to him. Op. Br. at 1. Specifically, he alleges
that he was “limited in [his] ability to access [his] unit team members” because
they would “avoid[] visiting [his] cell area to accept grievances and return
grievances.” Id. In support of his claim, Mr. Queen submitted to the district
court certain affidavits purportedly from other inmates. The district court found
the affidavits of dubious authenticity and thus entitled to little weight, and we
cannot disagree with that conclusion. Several of the affidavits contain
typewritten signatures, and were dated Friday, December 1, 2006, at locations
-3-
throughout the county, yet submitted by Mr. Queen together on Monday,
December 4, 2006 (something that would not be possible through the prison mail
system), suggesting that Mr. Queen created them himself. R., Doc. 48, Exs. 19-
33; Doc. 53 at 36-38 (citing Declaration of Mary A. Benning, Declaration of
Laura A. Mason, and Declaration of Jonathan Kaminski). Further, Mr. Queen
was not approved to correspond with other inmates at the time the affidavits were
purportedly signed, R., Doc. 53 at 38 (citing Declaration of Laura A. Mason),
and several of the inmates who signed affidavits were never incarcerated at
Leavenworth with Mr. Queen, R., Doc. 53 at 38 (citing Declaration of Mary A.
Benning).
Accordingly, we affirm the district court’s determination that Mr. Queen
did not exhaust his administrative remedies and that his claims were not properly
excused from exhaustion. Mr. Queen is reminded that he must continue making
payments until the full balance of the appellate filing fee in this matter is paid.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
-4-