Palozie v. Pugh

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS DEC 20 2004
TENTH CIRCUIT PATRICK FISHER
Clerk
JONATHAN PALOZIE,
Plaintiff-Appellant,
v.
No. 04-1313
(D.C. No. 01-RB-2302 (CBS))
MICHAEL V. PUGH, Warden;
(Colorado)
LAWRENCE L. LEYBA, D.O.,
Correctional Officers in U.S.P.
Florence, Colorado,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.
Jonathan Palozie, a federal prisoner proceeding pro se, filed a civil rights
action against various prison officials and prison medical professionals for
*
After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
mistreatment and denial of proper medical care in violation of his constitutional
rights. The district court dismissed his action for failure to exhaust administrative
remedies and denied his request to proceed in forma pauperis (ifp) on appeal. Mr.
Palozie appeals the district court’s rulings, renews his request to proceed ifp, and
has filed a number of additional motions with this court. We exercise jurisdiction
under 28 U.S.C. § 1291, and construe Mr. Palozie’s pro se filings liberally. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hunt v. Uphoff, 199 F.3d 1220,
1223 (10th Cir. 1999). For the reasons set forth below, we affirm the district
court and deny Mr. Palozie’s ifp request. 1
Mr. Palozie filed a civil rights action under Bivens v. Six Unknown Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging violations of his
First, Sixth, Eight and Fourteenth Amendment rights, arising out of defendants’
alleged mistreatment of him and denial of proper medical treatment. In response
to Mr. Palozie’s complaint, the district court ordered him to show cause in writing
why his civil action should not be dismissed for failure to exhaust administrative
remedies as required by 42 U.S.C. § 1997e(a). 2 Mr. Palozie did not comply with
1
In light of our disposition of Mr. Palozie’s case, his motion for oral
argument is moot. Likewise, we will not address his several motions and
memorandums addressing the merits of his complaint in which he seeks
alterations in his prison medical care, a specific diet, an independent medical
examination, and the appointment of a medical expert.
2
“No action shall be brought with respect to prison conditions . . . by a
prisoner confined in any jail, prison, or other correctional facility until such
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this order.
Mr. Palozie’s action was referred to a magistrate judge who noted that
while Mr. Palozie submitted numerous documents with his complaint purportedly
addressing the exhaustion issue, the documents only referred to one of the named
defendants in the action, and did not specifically address all the claims raised in
his complaint. The magistrate judge further noted that while Mr. Palozie may
have initiated some administrative grievance procedures, he failed to present any
documentation showing he proceeded throughout the entire grievance process, and
thereby failed to show he fully exhausted the administrative remedies available to
him. The magistrate judge concluded “[i]t appears to the court that Palozie has
not sufficiently exhausted his administrative remedies as to the claims in this
lawsuit.” Rec., vol. I, doc. 18 at 7. The magistrate judge therefore recommended
the action be dismissed for failure to exhaust administrative remedies as required
by § 1997e(a). The district court subsequently adopted the recommendation in
full. 3 Mr. Palozie appeals.
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
3
The magistrate judge also issued a separate recommendation that Mr.
Palozie’s action be dismissed for failure to comply with a court order directing
Mr. Palozie to make monthly payments toward his district court filing fee. The
district court initially dismissed Mr. Palozie’s action on these grounds, but was
reversed by our court. See Palozie v. Pugh, et al., 62 Fed. Appx. 876 (10th Cir.
2003). The case was remanded and the district court then dismissed Mr. Palozie’s
case for failure to exhaust administrative remedies.
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We review de novo a district court’s dismissal for failure to exhaust
administrative remedies under § 1997e(a). Jernigan v. Stuchell, 304 F.3d 1030,
1032 (10th Cir. 2002). Failure to exhaust administrative remedies as required by
§ 1997e(a) will result in dismissal of the case. Booth v. Churner, 532 U.S. 731,
741 (2001); Yousef v. Reno, 254 F.3d 1214, 1216 n.1 (10th Cir. 2001). In this
context, “[a]n inmate must allege and show he has exhausted all available
remedies.” Overton v. Claussen, 65 F. Supp. 2d 1165, 1166 (D. Colo. 1999).
More particularly, an inmate must allege exhaustion with sufficient specificity
“and show that [he has] exhausted [his claims] by attaching a copy of the
applicable administrative dispositions to the complaint, or in the absence of
written documentation, describe with specificity the administrative proceeding
and its outcome.” Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir. 2000). Mr.
Palozie has not satisfied this burden. Even the most liberal reading of Mr.
Palozie’s complaint and his submissions to the district court and to our court
would not transform the narrative and multitude of information in Mr. Palozie’s
filings into specific allegations undercutting the district court’s determination that
he failed to exhaust his administrative remedies.
In his complaint, Mr. Palozie briefly alleged he exhausted his
administrative remedies but also claimed “remedys [sic] are frivolous and in fact
don’t work.” Rec., Vol. I, doc. 4 at 5(a). Mr. Palozie did attach a variety of
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materials to his complaint which indicate he filed several administrative grievance
complaints against at least one of the named defendants. However, these
documents do not necessarily match with specificity the claims raised in Mr.
Palozie’s complaint, nor do the documents establish Mr. Palozie fully exhausted
the administrative process. Likewise, Mr. Palozie has submitted extensive
additional documentation to this court on appeal, which includes evidence of Mr.
Palozie’s regular filing of administrative complaints against prison staff.
However, as with the materials submitted with his complaint, these additional
documents either do not address the specific claims made against the specific
defendants named in the current controversy, or they fail to establish that Mr.
Palozie proceeded with each complaint throughout the full administrative
grievance process.
In sum, we agree with the district court’s conclusion that Mr. Palozie failed
to exhaust his administrative remedies. His civil action was therefore properly
dismissed. We DENY Mr. Palozie’s request to proceed ifp, and we AFFIRM
the district court.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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