Simmons v. Stus ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
November 9, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
JAMES SIMMONS,
Plaintiff-Appellant,
v. No. 10-3070
(D.C. No. 5:06-CV-03291-SAC)
JON STUS, Deputy, Crawford County (D. Kan.)
Sheriff Department; DONNY (LNU),
Deputy, Crawford County Sheriff
Department; TROY (LNU), Deputy,
Crawford County Sheriff Department,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TACHA, ANDERSON, and KELLY, Circuit Judges.
James Simmons, a Kansas prisoner proceeding pro se and in forma
pauperis, appeals the district court’s dismissal of his excessive-force claim,
*
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(G). The case is
therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
brought pursuant to 42 U.S.C. § 1983, for failure to exhaust available
administrative remedies. We take jurisdiction under 28 U.S.C. § 1291 and affirm.
Background
Mr. Simmons filed suit complaining about the conditions of his
confinement at the Crawford County Jail in Girard, Kansas, from August 7, 2006
to May 22, 2007. The district court dismissed all of his claims for failure to state
a constitutional violation except the excessive-force claim. 1 Mr. Simmons alleged
that jailers used excessive force on December 19, 2006, when he was beaten by
three correctional officers. The district court dismissed the claim for failure to
exhaust administrative remedies.
Mr. Simmons concedes that he did not file an administrative grievance
concerning the alleged excessive-force incident. He further concedes that there
was a grievance procedure in place at the jail. Instead, he argues that he was
unaware of the grievance procedure. 2
1
Mr. Simmons has waived his claims other than the excessive-force claim by
failing to argue them on appeal. See Ruiz v. McDonnell, 299 F.3d 1173, 1182 n.4
(10th Cir. 2002) (holding issues not argued to appellate court are deemed
waived).
2
Mr. Simmons also asserts that the district court erred in stating that (1) he
was assigned to a one-man holding cell for protection; (2) he claimed the beating
occurred in his cell, rather than outside it; and (3) he had submitted grievances
prior to the alleged beating. These disputes are not relevant to the issue of
whether he exhausted administrative remedies relative to the alleged beating.
-2-
Analysis
The Prison Litigation Reform Act of 1995 (PLRA), 42 U.S.C. § 1997e(a),
provides that a prisoner confined in any jail, prison or correctional facility may
not bring any action under any federal law regarding prison conditions “until such
administrative remedies as are available are exhausted.” This “exhaustion
requirement applies to all inmate suits about prison life, whether they involve
general circumstances or particular episodes, and whether they allege excessive
force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). “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). Because
Mr. Simmons is proceeding pro se, we construe his filings liberally. See Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van Deelen v. Johnson, 497 F.3d
1151, 1153 n. 1 (10th Cir. 2007).
“There is no question that exhaustion is mandatory under the PLRA and
that unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S.
199, 211 (2007). In an unpublished decision, this court addressed whether a
prisoner may avoid the exhaustion requirement if he was unaware of the jail’s
grievance procedures. Gonzales-Liranza v. Naranjo, 76 F. App’x 270 (10th Cir.
2003). Although Gonzales-Liranza is not binding precedent, we agree with its
reasoning, given its factual similarity to this case. In each, the prisoner claimed
he had not been informed how to file a grievance or given an inmate handbook
-3-
describing the procedure, and neither claimed that the respective correctional
facility “did anything to frustrate or prevent him from utilizing [the grievance]
procedures,” id. at 273. Accordingly, we hold that “even accepting plaintiff’s
allegation that he was unaware of the grievance procedures, there is no authority
for waiving or excusing compliance with PLRA’s exhaustion requirement.” Id.;
see also Griffin v. Romero, No. 10-2138, 2010 WL 4069460, at *2 (10th Cir.
Oct. 19, 2010) (unpublished) (affirming dismissal for failure to exhaust
administrative remedies even though prisoner claimed that jail officers did not
make grievance process available to him).
Conclusion
The district court granted Mr. Simmons leave to proceed on appeal in forma
pauperis. He is reminded that he must continue to make partial payments until
the entire balance of the filing fee is paid. The judgment of the district court is
AFFIRMED.
Entered for the Court
Deanell Reece Tacha
Circuit Judge
-4-