Hemphill v. Jones , 343 F. App'x 329 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 1, 2009
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
STACEY L. HEMPHILL,
Plaintiff - Appellant,
v. No. 09-6009
(W. D. Okla.)
JUSTIN JONES; ERIC FRANKLIN; (D.Ct. No. 5:07-CV-00817-HE)
PAULA BETHEA; MARK SEWELL;
LORI BAKER; KAREN GOODSON;
MARY LEISTNER; GREG BROOKS;
RICK WHITTEN; MARVIN
VAUGHN; DEBBIE MORTON; LEO
BROWN; CHERYL WALL; TRACY
McCOLLUM; BRENDA BROOKS;
JUDY NEW; ROBERT BEBEE; TIM
WILKINS,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.
*
This order and judgment is not binding precedent. 10th Cir. R. 32.1(A). Citation
to orders and judgments is not prohibited. Fed. R. App. 32.1. But it is discouraged,
except when related to law of the case, issue preclusion or claim preclusion. Any citation
to an order and judgment must be accompanied by an appropriate parenthetical notation --
(unpublished). 10th Cir. R. 32.1(A).
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. The case is therefore
ordered submitted without oral argument.
Stacey Hemphill, an Oklahoma inmate proceeding pro se, 1 appeals from the
district court’s dismissal of his civil rights complaint for failure to exhaust
administrative remedies. He also filed a request with this Court to proceed in
forma pauperis (ifp) on appeal. We affirm the district court and deny Hemphill’s
request to proceed ifp.
I. BACKGROUND
Hemphill filed a complaint under 42 U.S.C. § 1983 alleging various state
prison officials violated his constitutional rights: specifically, his due process
rights, his rights to freedom of speech and religion and his right to access the
courts. The court ordered the Oklahoma Department of Corrections (ODOC) to
submit a special report pursuant to Martinez v. Aaron, 570 F.2d 317, 320 (10th
Cir. 1978) (“The state prison administration, at a level where the facts can be
adequately developed, first examines and considers the incident, circumstances,
and conditions which gave rise to the asserted cause of action and develops a
record before the court must proceed beyond the preliminary stages.”).
1
We liberally construe Hemphill’s pro se filings. See Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
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The ODOC filed a Martinez report followed by a motion to dismiss under
Rule 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure or, in the
alternative, a motion for summary judgment. It argued the case should be
dismissed because Hemphill had not properly exhausted his administrative
remedies. The magistrate judge filed a report and recommendation
recommending the ODOC’s motion for summary judgment be granted. Hemphill
filed an objection and a supplemental objection to the report and recommendation.
He also filed motions to introduce evidence, for an evidentiary hearing, for a
joint discovery plan, for leave to file supplemental relief and requesting a
preliminary injunction and a temporary restraining order. 2 The district court
adopted the magistrate’s report and recommendation, granted Defendants’ motion
for summary judgment based on Hemphill’s failure to exhaust his administrative
remedies, and denied Hemphill’s pending motions. Hemphill filed a motion for
reconsideration or amendment of the district court’s order, which the district court
denied. This timely appeal followed.
2
On appeal, Hemphill does not specifically argue the district court erred in
denying his request for a preliminary injunction and we will, therefore, not consider it on
appeal. See Utahns for Better Transp. v. United States Dep’t of Transp., 305 F.3d 1152,
1175 (10th Cir. 2002) (issues are deemed waived if they are not adequately addressed).
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II. DISCUSSION
“We review de novo a district court’s dismissal of an inmate’s suit for
failure to exhaust his . . . administrative remedies.” 3 Patel v. Fleming, 415 F.3d
1105, 1108 (10th Cir. 2005). The Prison Litigation Reform Act (PLRA) states:
“No action shall be brought with respect to prison conditions under [42 U.S.C.
§ 1983], 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.” 42 U.S.C. § 1997e(a). This provision requires “proper exhaustion,”
that is, compliance with the prison’s grievance procedure, including its deadlines.
3
The ODOC argues Hemphill has waived his appeal because he failed to
adequately identify any issues. To the extent any issues are identified, the ODOC alleges
“Plaintiff makes no citation to the record and does not conduct any substantive analysis of
the law as it applies to the facts he asserts.” (Appellee’s Br. at 7.)
While we construe a pro se plaintiff’s filings liberally, “the court cannot take on the
responsibility of serving as the litigant’s attorney in constructing arguments and searching
the record.” Garrett v. Selby Connor Maddux & Janner, 425 F.3d 836, 840 (10th Cir.
2005). “[A]n appellant’s pro se status does not excuse the obligation of any litigant to
comply with the fundamental requirements of the Federal Rules of Civil and Appellate
Procedure.” Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).
Under Rule 28, which “applies equally to pro se litigants,” a brief “must contain . . .
more than a generalized assertion of error, with citations to supporting authority.”
Garrett, 425 F.3d at 841 (quotations omitted). In Garrett, we dismissed an appeal
because the plaintiff’s brief lacked the substance under Rule 28 and, instead, contained
only generalized assertions and ad hominem attacks on the judiciary. Id. Unlike the
briefs in Garrett, Hemphill’s complaints against the district court did not rise to an
offensive level. Therefore, we will address his claims based on our review of his motion
for preliminary injunction and his motion to supplement, the only portion of the record to
which we are directed, as well as the magistrate’s report and recommendation, Hemphill’s
objections, his motion for reconsideration and the district court’s rulings.
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Woodford v. Ngo, 548 U.S. 81, 90 (2006). “An inmate who begins the grievance
process but does not complete it is barred from pursuing a § 1983 claim under
[the] PLRA for failure to exhaust his administrative remedies.” Jernigan v.
Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002).
The ODOC acknowledges Hemphill commenced the prison’s grievance
process but contends he did not complete it and, therefore, did not properly
exhaust his administrative remedies. 4 Hemphill claims he did exhaust his
available remedies because in some instances he properly filed grievances that
were returned to him and, at other times, he did not receive a response within
thirty days. “[T]he failure to respond to a grievance within the time limits
contained in the grievance policy renders an administrative remedy unavailable.”
Id. However, in this case, the prison’s grievance procedure allows an inmate who
has not received a timely response to send a grievance to the administrative
4
The ODOC has a four step grievance procedure. (Special Report, Doc. 45,
Attach. 12, OP-090124.) First, an inmate must attempt to resolve his complaint by
speaking to an appropriate staff member within three days of the incident. If the problem
is not resolved verbally, the inmate must proceed to the second step and submit a Request
to Staff (RTS). The RTS must be filed within seven days of the date of the incident. If
dissatisfied with the response to the RTS, an inmate must file a grievance with the
reviewing authority or, if a medical grievance, the correctional health services
administrator, within fifteen days of the incident or the date of the response to the RTS,
whichever is later. At the fourth step, an inmate wishing to challenge the reviewing
authority or correctional health service administrator’s response may file an appeal with
the administrative review authority or chief medical officer within fifteen days of
receiving the reviewing authority or correctional health services administrator’s response.
Only after obtaining a final ruling from the administrative review authority or chief
medical officer has an inmate exhausted the Oklahoma prison grievance process.
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review authority with evidence of submission of the grievance and the sole
assertion the inmate’s grievance was not answered. (See Special Report, Doc. 45,
Attach. 12, OP-090124 § V.C.4.) Hemphill does not allege he took this action.
Hemphill claims the ODOC unreasonably rejected some of his grievances
because he had previously filed grievances with the same defect, but those
grievances were accepted. The fact he may have disagreed with the ODOC’s
reasons for their rejection of his filings is of no consequence. Because he was
given an opportunity to cure the deficiencies and he did not do so, he did not
properly exhaust his administrative remedies. See Jernigan, 304 F.3d at 1032.
“A motion to proceed ifp on appeal, supported by required documents, must
be made in the first instance to the district court.” Boling-Bey v. U.S. Parole
Comm’n, 559 F.3d 1149, 1154 (10th Cir. 2009) (citing Fed. R. App. P. 24(a)(1)).
This allows the district court to “focus [its] attention on the issues to be
presented” and consider “whether the appeal is taken in good faith.” Id. at 1153-
54; see 28 U.S.C. § 1915(a)(3) (“An appeal may not be taken in forma pauperis if
the trial court certifies in writing that it is not taken in good faith.”). “Only if
that motion is denied is there occasion to file an ifp motion with this court.” Id.
at 1154.
Hemphill did not file a motion to proceed ifp on appeal with the district
court pursuant to 28 U.S.C. § 1915(a)(1) and Rule 24(a)(5) of the Federal Rules
of Appellate Procedure. Rather, he filed his request with this Court. Because
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Hemphill’s appeal was filed prior to our clarifying decision in Boling-Bey, we
will consider his motion here.
To proceed ifp on appeal “an appellant must show a financial inability to
pay the required filing fees and the existence of a reasoned, nonfrivolous
argument on the law and facts in support of the issues raised on appeal.”
DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991) (emphasis added).
We have reviewed Hemphill’s application to proceed ifp, his opening brief and
the district court record and determined this appeal is frivolous. See 28 U.S.C.
§ 1915(e)(2)(B). We DENY Hemphill’s motion to proceed ifp. He must pay the
filing fee in full.
If the full amount of the filing fee is not paid within twenty days of the date
of this order, the Clerk of this Court shall issue an order requiring Hemphill
and/or his custodian to forward payments from his account to the Clerk of the
United States District Court for the Western District of Oklahoma until the filing
fee is paid in full. See Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2001)
(dismissal of appeal does not relieve a party from the responsibility to pay the
appellate filing fee). He shall be given credit for any payments previously made
in this case.
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The Oklahoma Attorney General is directed to serve a copy of this order
forthwith on Hemphill’s custodian.
AFFIRMED.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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