Barrett v. Barnes

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 14, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
KEN NETH EUG ENE BAR RETT,
Plaintiff - Appellant, No. 06-7007
v. E. D. Oklahoma
RA YM OND BA RN ES, (D.C. No. CIV-05-328-W H)
Defendant - Appellee.
OR D ER AND JUDGM ENT *
Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.
M r. Kenneth Barrett is incarcerated at the M uskogee County Detention
Center in M uskogee, Oklahoma. He filed suit under 42 U .S.C. § 1983 against
Raymond Barnes, jail administrator at the detention center, in the United States
District Court for the Eastern District of Oklahoma, claiming his constitutional
rights w ere violated when he was denied access to a law library and copies of his
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
legal work. The district court dismissed the suit, ruling that M r. Barrett had
failed to exhaust his administrative remedies before filing suit. M r. Barrett
appeals the dismissal, arguing that he did exhaust. W e have jurisdiction under
28 U.S.C. § 1291 and affirm.
In his amended complaint M r. Barrett asserted that he had no access to the
prison law library or to copies of his legal work, and that he had letters proving
he was denied access. He also claimed to have exhausted his administrative
remedies, stating: “Verbally asked and written. Have proff of it. But they ar
evidence. Can’t get copys to show you. As I have indacated before.” R. Vol. I
Doc. 6 at 4. The district court ruled that M r. Barrett had not made “any colorable
argument that he has exhausted his administrative remedies” nor had he cited any
“authority or facts, other than his own conclusory allegations, to demonstrate he
was denied access to those administrative procedures.” R. Vol. I Doc. 16 at 2.
M r. Barrett neither submitted documentation of his efforts to exhaust his
administrative remedies nor described his efforts to do so. On appeal he
challenges the district court’s finding that he did not exhaust his administrative
remedies. His sole arguments are that he “did exhaust all of his addminastrative
remeadies And has proff,” Aplt. Br. at 3, and that if the district court had
permitted him an evidentiary hearing he w ould have been able to show the court
that proof.
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The district court correctly ruled that under Fitzgerald v. Corrections Corp.
of America, 403 F.3d 1134, 1139 (10th Cir. 2005), in order to allege exhaustion
successfully M r. Barrett must either “attach a copy of the applicable
administrative dispositions to the complaint,” or “describe with specificity the
administrative proceeding and its outcome.” (internal quotation marks and
brackets omitted). M r. Barrett did not meet this standard in district court, and his
opening brief to us is hardly more specific. The district court correctly ruled that
M r. B arrett failed to exhaust his administrative remedies.
In M r. Barrett’s reply brief he makes two additional arguments: that the
district court should have ordered a M artinez report, see Martinez v. Aaron, 570
F.2d 317, 319-20 (10th Cir. 1978), and that he should be excused for his failure to
plead exhaustion because he suffers from a severe learning disability and did not
have access to legal materials. But M r. Barrett did not raise these arguments in
district court, so we will not address them. See Simmat v. U.S. Bureau of Prisons,
413 F.3d 1225, 1240 (10th Cir. 2005).
W e A FFIRM the ruling of the district court. W e D ENY M r. Barnes’s
motion for leave to file a surreply.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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