Cannon v. Mason , 284 F. App'x 588 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
July 17, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JEMAINE MONTEIL CANNON,
Plaintiff - Appellant,
No. 08-7005
v. (D.C. No. 07-CV-00127-FHS-SPS)
(E.D. Okla.)
CHESTER MASON, Correctional
Health Services Administrator;
DOCTOR STEWART, D.O.;
DOCTOR MILLER, Eye Physician,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before TACHA, KELLY, and McCONNELL, Circuit Judges. **
Plaintiff-Appellant Jemaine Monteil Cannon, a prisoner appearing pro se,
appeals the district court’s dismissal of his 42 U.S.C. § 1983 civil-rights claim for
failure to exhaust his administrative remedies as required by 42 U.S.C.
§ 1997e(a), and its implicit denial of his applications for injunctive relief. Mr.
*
This order and judgment is not binding precedent, except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Cannon’s complaint and request for injunctive relief pertain to his medical
treatment as an inmate at the Oklahoma State Penitentiary. We have jurisdiction
under 28 U.S.C. § 1291 and affirm.
“We review de novo the district court’s finding of failure to exhaust
administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.
2002). Under 42 U.S.C. § 1997e(a), a prisoner who brings an action pertaining to
prison conditions must exhaust all administrative remedies available to him prior
to filing the action. The Oklahoma Department of Corrections (“ODOC”) has a
grievance procedure in place for all claims not involving misconducts requiring
prisoners to properly and timely file for each claim: (1) a request to staff; (2) a
grievance to the facility head; and (3) an appeal of the facility head’s response to
the administrative-review authority. R. Doc. 31 at 2. Only after a final ruling by
the administrative-review authority or chief medical officer have all
administrative remedies for a claim been exhausted. Id. The grievance logs for
the relevant time period and sworn affidavits from ODOC employees indicate that
Mr. Cannon did not file any grievance. R. Doc. 31, 32 Ex. 2, 3, 9. As Mr.
Cannon does not contest these facts, his complaint was properly dismissed unless
an exception to exhaustion applies. See Aquilar-Avellaveda v. Terrell, 478 F.3d
1223, 1225 (10th Cir. 2007).
On appeal, Mr. Cannon essentially argues that the district court erred in (1)
denying his motion for injunctive relief, and (2) dismissing his claim because of
-2-
the inadequacy or unavailability of administrative remedies. We have reviewed
his claims and conclude that the district court did not err. A grievance procedure
was available, Mr. Cannon did not avail himself of it, and the fault does not lie
with the Defendants. See Booth v. Churner, 532 U.S. 731, 741 (2001); Fields v.
Okla. State Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007).
AFFIRMED.
Entered for the Court,
Paul J. Kelly, Jr.
Circuit Judge
-3-