Turrietta v. Barreras , 91 F. App'x 640 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 5 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
RICK TURRIETTA,
Plaintiff-Appellant,
v. No. 02-2343
(D.C. No. CIV-01-680 JP/LFG)
LAWRENCE BARRERAS, Senior (D. N.M.)
Warden, Valencia County Detention
Center; JOHN DOE, also known as
Capt. Menjia, also known as C/O Diaz,
Valencia County Detention Center,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before MURPHY and PORFILIO , Circuit Judges, and BRORBY , Senior Circuit
Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
This order and judgment is not binding precedent, except under the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.
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.
Plaintiff Rick Turrietta, a state inmate appearing pro se, appeals from the
district court’s order adopting the magistrate judge’s recommendation to dismiss
without prejudice his action brought under 42 U.S.C. § 1983 on the ground that he
did not exhaust administrative remedies. We exercise jurisdiction under
28 U.S.C. § 1291 and affirm.
Mr. Turrietta’s claims arose from an incident occurring in October of 2000,
while he was a pretrial detainee in the Valencia County Detention Center. He
alleges that he was injured during a strip search during which jail personnel used
excessive force, and that he was denied necessary medical and psychological
treatment for those injuries. Following the incident at the Valencia County
facility, he was transferred to the Santa Fe County Detention Facility. Both jails
were run by the same private entity, and both maintained inmate grievance
procedures. There is no dispute that Mr. Turrietta did not file a grievance or
other administrative complaint.
A jail detainee must exhaust administrative grievances before filing his
civil rights lawsuit 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 . . . until such administrative
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remedies as are available are exhausted.”). Exhaustion is mandatory. Booth v.
Churner, 532 U.S. 731, 741 (2001). The exhaustion requirement applies to a
single incident of unreasonable force. Porter v. Nussle, 534 U.S. 516, 532
(2002). We review de novo a district court’s determination that a prisoner failed
to exhaust administrative remedies. Jernigan v. Stuchell, 304 F.3d 1030, 1032
(10th Cir. 2002). “[W]e will assume, without deciding, that [§ 1997e(a)] applies
to private prisons.” Beaudry v. Corr. Corp of Am. , 331 F.3d 1164, 1166 (10th
Cir. 2003), cert. denied , 2004 WL 47068, (U.S. Jan. 12, 2004).
Mr. Turrietta does not contest defendants’ position that in order to exhaust
administrative remedies, he was required to file a grievance with jail personnel,
which he did not do. He asserts, however, that he should be excused from the
exhaustion requirement. Because exhaustion under § 1997e(a) is not
jurisdictional, Steele v. Fed. Bureau of Prisons , No. 02-1492, 2003 WL 23019855,
*3 (10th Cir. Dec. 29, 2003), we consider Mr. Turrietta’s reasons for not filing a
grievance.
Mr. Turrietta claims that he should be excused from the exhaustion
requirement for the following reasons: (1) he was prevented from filing a
grievance because he was moved from jail to jail and was kept in solitary
confinement until the deadline for filing had passed; (2) he was never informed of
the grievance procedure; (3) administrative remedies were not “available” because
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they did not permit requests for money damages by jail detainees; (4) a jail
warden told him that if he complained, he would be transferred to another jail,
where he could not get any visits; and (5) the jail rules, including the grievance
policy, were not in effect at the time of his incident, as evidenced by the various
revision dates on the forms that prove they were back dated.
Addressing these claims in order, we first determine that Mr. Turrietta has
not alleged facts to support his charge that he could not have filed a grievance
while at the transferee jail or while in solitary confinement. The mere fact that he
was transferred and confined does not direct the conclusion that he was thereby
prevented from filing a grievance, particularly since he was able to submit, and
did submit, requests for medical treatment during that time. See Erikson v.
Pawnee County Bd. of County Comm’rs , 263 F.3d 1151, 1154-55 (10th Cir. 2001)
(holding claim insufficient because not supported by allegation of specific facts).
We also hold that the mandatory exhaustion requirement cannot be excused
on the ground that the detainee was not informed of the grievance procedure. Cf.
Yousef v. Reno, 254 F.3d 1214, 1221 (10th Cir. 2001) (rejecting federal inmate’s
claim that authorities should have told him he needed to follow administrative
procedures). “[W]e will not read futility or other exceptions into statutory
exhaustion requirements where Congress has provided otherwise.” Booth,
532 U.S. at 741 n.6 (emphasis added). “Section 1997a(e) says nothing about a
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prisoner’s subjective beliefs, logical or otherwise, about the administrative
remedies that might be available to him. The statute’s requirements are clear: If
administrative remedies are available, the prisoner must exhaust them.” Chelette
v. Harris, 229 F.3d 684, 688 (8th Cir. 2000).
The Supreme Court has rejected Mr. Turrietta’s next argument, that a
prisoner is excused from the exhaustion requirement where the relief requested is
not available under the applicable grievance policy. Booth, 532 U.S. at 736, 741
& n.6.
As for his claim that a jail warden cautioned him that if he filed a
grievance, he would risk being transferred, Mr. Turrietta concedes that this
statement was made after the deadline to file a grievance had expired. Therefore,
even if this allegation is true, the warden’s statement did not prevent
Mr. Turrietta from exhausting administrative remedies.
Finally, we decline to address Mr. Turrietta’s charge that the grievance
policy was not in effect because he did not present this argument to the district
court. He has not cited to the record where this issue was raised in the district
court, see Fed. R. App. P. 28(a)(7), (9)(A); 10th Cir. R. 28.2(C)(2), and our
review has not revealed that he did. We do not consider claims presented for the
first time on appeal. Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th
Cir. 1992).
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Mr. Turrietta’s motion to proceed without prepayment of costs and fees is
granted. He is reminded that he is obligated to continue making partial payments
until the entire fee has been paid.
The judgment of the district court is AFFIRMED. The mandate shall issue
forthwith.
Entered for the Court
Michael R. Murphy
Circuit Judge
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