Bias v. Cornell Corrections, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit
December 21, 2005
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT Clerk of Court
EDWARD K. BIAS,
Plaintiff - Appellant,
v.
CORNELL CORRECTIONS, INC.; a
Texas Corporation; GREAT PLAINS
CORRECTIONAL FACILITY;
CORRECTIONAL MEDICAL
SERVICES CORPORATION;
PARKVIEW HOSPITAL, Owned and
Operated by the City of El Reno, a
municipal organization; CANTEEN
CORPORATION OF AMERICA; JOHN
DOE; STEVE LOGAN, President and
Chief Executive Officer of Cornell
Corrections, Inc.; GARY HENMAN, Vice No. 04-6353
President of Cornell Corrections, Inc.; (D.C. No. CIV-03-232-F)
GEORGE E. KILLINGER, Director of (W.D. Okla.)
Operations for Cornell Corrections, Inc.;
SAM CALBONE, Warden, Great Plains
Correctional Facility; TRAVIS SMITH,
Deputy Warden, Great Plains Correctional
Facility; MR. REID, Deputy Warden,
Great Plains Correctional Facility;
OFFICER BEASLEY, Mailroom, Great
Plains Correctional Facility; WILDA
ROSE, Case Manager, Great Plains
Correctional Facility; MS. NICKS, Job
Coordinator, Great Plains Correctional
Facility; CAPTAIN STRONG, Unit
Manager, A & D, Great Plains
Correctional Facility; LIEUTENANT
POST, SERGEANT SMITH, SERGEANT
JOHNSON, and OFFICER LENTZ, Great
Plains Correctional Facility; UNKNOWN
OFFICER; K. GUNTER, PAC,
Physician's Assistant, Parkview Hospital;
UNKNOWN DEFENDANT, Unknown
Medical Lab Tech at Parkview Hospital;
BRENDA GOODSON, Nurse, Parkview
Hospital; UNKNOWN DEFENDANT,
Paramedic EMT Ambulance Driver #1;
UNKNOWN DEFENDANT, Paramedic
EMT Ambulance Driver #2 ; UNKNOWN
DEFENDANT, Oklahoma Highway Patrol
Officer; UNKNOWN DEFENDANT,
Arrestee; JUDY OWENS, Health Services
Administrator; BILLY BEETS, MD, MS.
WYMER, Physician’s Assistant, MS.
KASPER, LPN, MS. TILLEY, LPN,
MRS. MCCARTY, RN, MRS. STRONG,
RN, MS. LEDFORD, Nurse, VALDIMIR
HOLY, MD, MS. SHEMEL, Food Service
Supervisor, and MS. KERR Food Service
Supervisor, Great Plains Correctional
Facility, in their official and individual
capacities.
Defendants - Appellees.
ORDER AND JUDGMENT *
*
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 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Order and Judgment is not binding precedent, except under the doctrines of law of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. 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.
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Before EBEL, McKAY and HENRY, Circuit Judges.
Edward Bias, a state prisoner appearing pro se and in forma pauperis,
brought an action under 42 U.S.C. § 1983 against a private prison in which he had
been incarcerated. He contends on appeal that he was not required to exhaust the
prison’s administrative remedies because the Prison Litigation Reform Act
(“PLRA”) does not apply to inmates incarcerated in privately-run prisons. We
disagree and affirm the district court’s dismissal of Mr. Bias’s complaint for
failure to fully exhaust.
I. BACKGROUND
Mr. Bias is an inmate in the custody of the Oklahoma Department of
Corrections (“ODOC”). While assigned to the Great Plains Correctional Facility,
a private prison operated by defendant Cornell Corrections, Inc., Mr. Bias
complained to staff that he was denied adequate treatment for various medical
conditions and that he was improperly fired from a prison job in retaliation for
requesting that he be allowed to take his medication. After prison staff allegedly
failed to adequately address his complaints, Mr. Bias filed the action that is the
subject of this appeal. He asserts numerous federal and state law claims,
including claims under § 1983 that the denial of medical treatment violated his
constitutional rights.
The district court accepted the magistrate judge’s recommendation that Mr.
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Bias’s claims be dismissed without prejudice. Relevant to this appeal, his § 1983
claims were dismissed due to failure to exhaust administrative remedies. Mr.
Bias appeals that dismissal.
II. DISCUSSION
We review de novo the applicability of the PLRA’s exhaustion
requirements and a district court’s dismissal of an inmate’s suit for failure to
exhaust administrative remedies. Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th
Cir. 2002). In addition, because Mr. Bias is proceeding pro se, we construe his
pleadings liberally. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972).
The PLRA states that “[n]o 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, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see also Porter v.
Nussle, 534 U.S. 516, 524–25 (2002). We have interpreted this as a “total
exhaustion requirement” such that “the presence of unexhausted claims in [a
prisoner]’s complaint require[s] [a] district court to dismiss his action in its
entirety without prejudice.” Ross v. County of Bernalillo, 365 F.3d 1181, 1189
(10th Cir. 2004). A prisoner bears the burden of pleading exhaustion. Steele v.
Fed. Bureau of Prisons, 355 F.3d 1204, 1209 (10th Cir. 2003), cert. denied, 125 S.
Ct. 344 (2004).
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Although Mr. Bias contends at length that the PLRA requirements do not
apply to private prisons, we have clearly held otherwise: the PLRA’s exhaustion
requirement “applies fully when the plaintiff is a federal or state inmate held in a
privately operated facility.” Ross, 365 F.3d at 1184. Therefore, Mr. Bias was
required to exhaust his claims.
Although it is not entirely clear, we construe Mr. Bias’s briefs on appeal to
also argue that he fulfilled the exhaustion requirement. See Haines, 404 U.S. at520–21. Proper exhaustion in this case would have entailed full compliance with
the ODOC’s four-step grievance procedures, as found in ODOC OP-090124. At
each step, if a prisoner does not receive a satisfactory response, he may proceed
to the next step. The first step is to seek informal resolution by talking with staff;
the second step is to file a written “request to staff”; the third step is to submit a
grievance; and the fourth step is to appeal an unfavorable decision on a grievance
to an appropriate reviewing officer. Having reviewed Mr. Bias’s claims, we agree
that the magistrate judge correctly concluded that Mr. Bias failed to fully exhaust
these grievance procedures. Although he initiated some grievance procedures, he
was required to fully exhaust those procedures, by following the above steps for
each grievance, before filing this lawsuit. Ross, 365 F.3d at 1189.
III. CONCLUSION
For the foregoing reasons, we AFFIRM dismissal of Mr. Bias’s complaint
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without prejudice. The district court granted Mr. Bias’s motion to proceed in
forma pauperis on appeal. We remind him of his obligation to continue to make
partial payments until his entire fee has been paid.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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