Mehdipour v. Swenson , 74 F. App'x 884 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 11 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
FAMAMARZ MEHDIPOUR,
Plaintiff-Appellant, No. 03-6054
v. (W.D. Oklahoma)
DARREN SWENSON, RENEE (D.C. No. 01-CV-1752-B)
WATKINS, Assistant Warden; TOM
KESSLER, Assistant Warden; KELLY
WILKELY, Chief of Security;
CAPTAIN STEER, Shift Supervisor;
CURTIS BOOHER, Investigator;
HEATHER BERNARD, Mailroom
Clerk; JAN REEDER, Classification
Clerk; OFFICER CASH, DON POPE,
individually and in their official
capacities; CORRECTIONS
CORPORATION OF AMERICA, a
Delaware corporation,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before EBEL, HENRY, and HARTZ, Circuit Judges.
*
This order and judgment is not binding precedent, except under the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.
After examining the briefs and appellate record, this panel has determined
unanimously to decide this case on the briefs without oral argument. See Fed. R.
App. P. 34(f) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument.
Faramarz Mehdipour, a state prisoner proceeding pro se, filed a complaint
pursuant to 42 U.S.C. § 1983 against various prison officials alleging that they
violated his First, Fourth, Sixth, Eighth, and Fourteenth Amendment rights. The
district court granted the defendants’ motion to dismiss, without prejudice, for
failure to exhaust his administrative remedies as required by the Prisoner
Litigation Reform Act, 42 U.S.C. § 1997e(a). We conclude that the district court
was correct and affirm its dismissal of Mr. Mehdipour’s claims.
Mr. Mehdipour’s complaint alleged that, based upon his Middle Eastern
descent and in the wake of the Sept. 11, 2001 attacks: (1) he was placed in
segregation, denied his mail, denied any exercise time, had his legal and religious
materials (Koran, prayer rug) confiscated, and received reductions in his earned
good time credits; (2) his confidential personal and legal correspondence,
including money orders correspondence with the courts and his attorneys, was
confiscated; (3) he was deprived and denied access to the few legal resources the
prison provided, and his research materials related to that research were
confiscated; (4) in retaliation for his threats of legal action, Mr. Mehdipour was
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placed in segregation; (5) the prison’s policies in training its employees to take
part in the above actions violated his constitutional rights; (6) the defendants
conspired to violate Mr. Mehdipour’s constitutional rights; (7) the defendants
have violated Mr. Mehdipour’s Sixth Amendment right of access to the courts; (8)
acting with deliberate indifference, the defendants placed Mr. Mehdipour in
substantial danger in his housing assignment; (9) the defendants established a
policy of denying inmates access to the courts through the provision of a contract
attorney; and (10) the defendants established a policy of discriminating against
persons of Middle Eastern descent by denying them certain privileges and
educational assignments.
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). Since Mr.
Mehdipour is pro se, we liberally construe his filings, see Haines v. Kerner, 404
U.S. 519, 520 (1972) (per curiam).
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. 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
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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 exercise jurisdiction under 28 U.S.C. § 1291and affirm.
As the district court explained, the Cimarron Correctional Facility has a
three-tier approach to resolving inmate complaints. To exhaust available
remedies at the facility, an inmate must (1) attempt to resolve matters informally,
(2) file a grievance with the facility, and (3) appeal any unresolved matter to the
facility head. Rec. doc. 50, at 3 (Mem. Order, filed Dec. 26, 2002). The record
indicates that while incarcerated, Mr. Mehdipour filed but two grievances at the
facility, despite the number of claims he raises here. The first grievance
addressed the facility’s failure to deposit the money order into his account. This
grievance was returned because Mr. Mehdipour did not seek an informal
resolution of the dispute before filing the grievance. Second, Mr. Mehdipour
filed a grievance regarding the confiscation of legal mail. This grievance was not
appealed.
We have carefully reviewed Mr. Mehdipour’s appellate brief, the district
court’s order, and the record on appeal, and agree that Mr. Mehdipour has failed
to exhaust his available administrative remedies. Nowhere in the record is there
evidence that Mr. Mehdipour properly used the available prison grievance process
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to make his constitutional claims. Accordingly, we AFFIRM the district court’s
grant of the defendants’ motion to dismiss for failure to exhaust without
prejudice. 1
For the reasons stated below, we affirm.
Entered for the Court,
Robert H. Henry
Circuit Judge
1
We also deny Mr. Mehdipour’s “Motion for Stricken Unauthorized
Order.”
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