McKeighan v. Corrections Corporation

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALSNovember 8, 2011
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
JAMES A. MCKEIGHAN,
Plaintiff-Appellant,
v. No. 10-3286
(D.C. No. 5:08-CV-03173-SAC)
CORRECTIONS CORPORATION OF (D. Kan.)
AMERICA; MIKE SHUTE, United
States Marshal’s Office, in his
individual and official capacity;
FREDRICK LAWRENCE, previous
Warden, CCA-Leavenworth, in his
individual and official capacity;
SHELDON RICHARDSON, current
Warden, CCA-Leavenworth, in his
individual and official capacity;
ROBERT MUNDT, Assistant Warden,
CCA-Leavenworth, in his individual
and official capacity; KENNETH
DAUGHERTY, Chief of Unit
Management, CCA-Leavenworth, in
his individual and official capacity;
BRUCE ROBERTS, Chief of Security,
CCA-Leavenworth, in his individual
and official capacity; GEORGE
GREEN, Lieutenant,
CCA-Leavenworth, in his individual
and official capacity; MELANIE
FULTON, Commissary/Warehouse &
Laundry, CCA-Leavenworth, in her
individual and official capacity,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before HARTZ, Circuit Judge, HOLLOWAY and PORFILIO, Senior Circuit
Judges.
James A. McKeighan, a federal prisoner at the United States Penitentiary in
Leavenworth, Kansas, appeals pro se the district court’s grant of summary
judgment in favor of seven Corrections Corporation of America (CCA) employees
and former Deputy United States Marshal Mike Shute on Mr. McKeighan’s claims
that while he was a pretrial detainee at the CCA facility in Leavenworth, Kansas,
he was (1) “denied outside recreation while housed in an overcrowded cell,” in
violation of the Eighth Amendment; and (2) “confined in segregation as
punishment for attempting to defend his criminal case,” in violation of the First
Amendment. McKeighan v. Corrs. Corp. of Am., No. 08-3173-SAC, 2010 WL
3913227, at *1 (D. Kan. Sept. 30, 2010). 1 In granting the defendants’ motions for
summary judgment on these two claims, the district court found that “there [wa]s
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
1
The district court had previously dismissed all of Mr. McKeighan’s other
claims, see McKeighan v. Corrs. Corp. of Am., No. 08-3173-SAC, 2010 WL
446503, *1 (D. Kan. Feb. 4, 2010), and he does not challenge the dismissal on
appeal.
-2-
no material issue of fact regarding plaintiff’s failure to exhaust administrative
remedies” and his “claims must be dismissed pursuant to 42 U.S.C. § 1997e(a) for
failure to exhaust.” McKeighan v. Corrs. Corp. of Am., 2010 WL 3913227, at
*18; see also id. at *18 n.28 (recognizing “that dismissal of unexhausted claims
on summary judgment should be without prejudice”). In the alternative, the
district “court dismisse[d] plaintiff’s claims, sua sponte, pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) because plaintiff . . . failed to allege sufficient facts to state a
federal constitutional violation.” McKeighan v. Corrs. Corp. of Am., 2010 WL
3913227, at *18. Mr. McKeighan appeals.
Our jurisdiction arises under 28 U.S.C. § 1291. The parties are familiar
with the facts and procedural history of this case, the district court detailed both,
McKeighan, 2010 WL 3913227, at *1-*4, and we need not restate that material
here.
In Mr. McKeighan’s pro se appellate brief which, like his district court
filings, we afford a liberal construction, see Yang v. Archuleta, 525 F.3d 925,
927 n.1 (10th Cir. 2008), he argues—as best we can discern—that the district
court should have deemed his claims exhausted because the defendants
(1) “forged [a] telephone grievance” and sent a copy of it to the district court
judge, Aplt. Opening Br. at 3; (2) hindered the grievance procedure by purposely
“holding onto” the informal resolution form for the telephone grievance until after
the deadline for filing a response had passed, id. at 4; and (3) “refused to give
-3-
him” requested grievance forms, told him that his complaints were
“‘non-grievable,’” and lost or “never answered” his submitted grievances, id. at 6.
Next, he directs our attention to inmate declarations he previously produced,
apparently to corroborate his allegation that the defendants interfered with his
attempts to exhaust his administrative remedies. See id. at 5. In this regard, he
also complains that “case managers refused” to notarize the inmate statements.
Id. He asserts that the defendants and “the Defendants’ attorney . . . lied” to the
district court judge “about McKeighan not filing any overcrowding” or “no
exercise grievances.” Id. at 7. Finally, he complains that the district court judge
is “making” him “pay the full filing fee of $350, even though he . . . does not
meet the qualifications of the ‘three strikes provision’ of the PLRA.” Id. at 8. 2
We review de novo all aspects of the challenged district court decision.
See Nielson v. Ketchum, 640 F.3d 1117, 1121 (10th Cir. 2011) (“We review
summary judgment decisions de novo, applying the same legal standard as the
2
As the district court in this case previously explained:
Pursuant to 28 U.S.C. § 1915(b)(1), plaintiff is obligated to
pay the full $350.00 district court filing fee in this civil action.
Being granted leave to proceed in forma pauperis entitles him to pay
an initial partial filing fee and the remainder due over time through
payments deducted automatically from his inmate trust fund account
as authorized by 28 U.S.C. § 1915(b)(2).
McKeighan v. Corrs. Corp. of Am., 2008 WL 3822892, at *1 n.4
(D. Kan. Aug. 13, 2008).
-4-
district court.” (internal quotation marks omitted)); Thomas v. Parker, 609 F.3d
1114, 1117 (10th Cir. 2010), cert. denied, 131 S. Ct. 1691 (2011) (“We review
de novo the district court’s finding of failure to exhaust administrative remedies.”
(internal quotation marks omitted)); Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir.
2007) (“We review de novo the district court’s decision to dismiss an IFP
complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.”).
We have carefully reviewed the record on appeal, the parties’ briefs, and
the applicable law, and we AFFIRM the judgment of the district court for
substantially the same reasons stated in its thorough September 30, 2010,
memorandum and order. We GRANT Mr. McKeighan’s motion for leave to
proceed on appeal without prepayment of costs or fees and remind him that he
must make partial payments until the entire appellate filing fee is paid in full.
Entered for the Court
William J. Holloway, Jr.
Senior Circuit Judge
-5-