Ramirez v. Santa Fe County Adult Detention Center

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 21, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court
PATRICK RAMIREZ,
Plaintiff - Appellant,
v. No. 05-2021
(D. New Mexico)
SANTA FE COUNTY ADULT (D.Ct. No. CIV-04-627 JB/DJS)
DETENTION CENTER,
Defendant - Appellee.
____________________________
ORDER AND JUDGMENT *
Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.
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This order and judgment is not binding precedent except under the doctrines of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. 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.
Patrick Robert Ramirez, appearing pro se and in forma pauperis (IFP), 1
filed this section 1983 action seeking damages and injunctive relief based upon
conditions of his confinement. The district court determined he failed to
adequately allege exhaustion of administrative remedies and issued an order to
show cause why it should not dismiss his complaint. Ramirez responded by filing
several supplemental pleadings, which were inadequate. 2 The district court
determined Ramirez had “submitted his grievances after filing his Complaint and
thus did not comply with the statute’s exhaustion requirement” and dismissed his
complaint without prejudice under 42 U.S.C. § 1997e(a) of the Prison Litigation
Reform Act (PLRA). 3 (R. Doc. 30 at 2.) Rather than refile after documenting
full exhaustion of administrative remedies, he has appealed from the district
court’s order. 4
We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
1
F.3d 1183, 1187 (10th Cir. 2003).
2
Ramirez filed supplemental materials indicating he had filed grievances with
prison officials after the present action was initiated. After-filed grievances are
insufficient to satisfy the exhaustion pleading requirement.
3
42 U.S.C. § 1997e(a) provides:
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, prison, or
other correctional facility until such administrative remedies as are available are
exhausted.
4
Although the district court dismissed Ramirez’s complaint without prejudice, we
have jurisdiction over this appeal because the dismissal disposed of the entire case.
-2-
In his filing with this Court, Ramirez argues the merits of his case without
any meaningful discussion of exhaustion, the primary basis of the district court’s
decision. Moreover, he merely quarrels with the district court’s conclusions in a
summary and conclusory fashion, without citation of authority or record
references. Ramirez’s appeal is “without merit in that it lacks an arguable basis
in either law or fact.” Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir.
2002). This dismissal of Ramirez’s appeal as frivolous counts as a strike pursuant
to 28 U.S.C. § 1915(g). Ramirez is reminded that if he accrues three strikes, he
will no longer be able to proceed IFP in any civil action filed in a federal court
unless he is in imminent danger of physical injury. 28 U.S.C. § 1915(g).
We DISMISS the appeal.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1275 (10th Cir. 2001). We have
previously entertained appeals from district courts’ dismissals of claims without prejudice
for failure to exhaust under the PLRA. See, e.g., Ross v. County of Bernalillo, 365 F.3d
1181, 1189 (10th Cir. 2004).
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