Bell v. Ward

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 26, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JOH N B ELL,
Plaintiff-Appellant, No. 05-7118
v. (E.D. of Okla.)
RON W ARD, Director for the (D.C. No. CV -04-320-P)
Oklahoma Department of Corrections,
M IKE M ULLIN, W arden, M R.
ROLLINS, Acting W arden, Chief of
Security, ROBERT BERRY, Unit
M anager, BRUCE W HITE, Counselor,
SANDY DUNN, Case M anager,
JA M ES WH A LA , Lieutenant, CHAD
M OR GA N, Sargent, VERL HA NC E,
Corporal
Defendants-Appellees.
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Judge, HA RTZ, and TYM KOVICH, Circuit Judges. **
*
This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Petitioner-Appellant John Bell, proceeding pro se, 1 appeals the Eastern
District of Oklahoma’s dismissal of his suit under 42 U.S.C. § 1983 for failure to
exhaust administrative remedies. Because Bell has yet to avail himself of the
remedies available within the Oklahoma prison system, we AFFIRM the district
court’s application of the exhaustion requirement.
I. Background
Bell claims that Oklahoma State Penitentiary (OSP) staff ignored his
repeated requests for protection from white and Native American inmates who
had threatened his life. Bell maintains that these refusals resulted in an incident
on December 11, 2002, during which he was stabbed and severely beaten by a
gang of inmates after they yelled “niggers bring your knives” as he was released
into the prison yard for recreation time. Another inmate w as allegedly killed in
the same attack. Bell contends that OSP staff should have searched the inmates
for weapons beforehand and should have responded to the incident more quickly.
Bell asserts that after the incident he began a grievance process pursuant to
O SP regulations by seeking to have his complaints resolved informally. He
contends that these efforts went unanswered by OSP staff and that his subsequent
attempts to appeal OSP’s failure to rule on his grievances were destroyed by
prison staff and not properly documented in the prison grievance log.
1
W e construe Bell’s appellate filings liberally. See Cum mings v. Evans,
161 F.3d 610, 613 (10th Cir. 1998).
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II. Discussion
Construing Bell’s appellate pleadings liberally, he makes two argum ents:
(1) that he exhausted his administrative remedies, or, alternatively (2) that we
should excuse him from the exhaustion requirement because OSP staff thwarted
the administrative grievance process. W e disagree with both.
Under the Prison Litigation Reform Act (PLRA), a state prisoner bringing a
§ 1983 claim must affirmatively plead and bears the burden to prove that he has
exhausted all available administrative remedies. Simms v. Okla. ex rel. Dep’t of
M ental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999).
In general:
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.
42 U.S.C. § 1997e(a). “[T]he substantive meaning of § 1997e(a) is clear: resort
to a prison grievance process must precede resort to a court.” Steele v. Fed.
Bureau of Prisons, 355 F.3d 1204, 1207 (10th Cir. 2003) (internal quotations
omitted). A prisoner must do more than initiate the administrative grievance
process; he must also complete it. Jernigan v. Stuchell, 304 F.3d 1030, 1032
(10th Cir. 2002). The prisoner, however, may be excused from the exhaustion
requirement where he can demonstrate that adm inistrative remedies are
unavailable or resort to such remedies is futile. Steele, 355 F.3d at 1209. A
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plaintiff seeking to be excused from the exhaustion requirement on these grounds
must do more than make unsupported conclusory allegations of misconduct by
prison officials. Id. at 1209–10.
Bell has not satisfied these standards. First, although he claims he pursued
his grievance informally, he failed to show that he completed the process.
Jernigan, 304 F.3d at 1032. Bell has thus failed to exhaust the administrative
remedies available to him.
Bell has also failed to show futility. In response to Bell’s second
argument— that OSP officials impeded his grievance appeals by destroying them
and falsifying the prison grievance log— the district court, after giving Bell the
opportunity to supplement the record and respond to an affidavit and exhibits
supplied by OSP regarding the grievance process, found no evidence in support of
his allegations that OSP staff deliberately impeded his administrative appeals.
Bell maintains that he has copies of the appeals he attempted to file, but he did
not provide them to the district court in support of his claim. M oreover, OSP
filed an affidavit from the Oklahoma D epartment of Corrections (DOC) official
responsible for grievance appeals stating that there were no administrative appeals
from Bell between January 1, 1998 and November 15, 2004. In light of the
state’s evidence and Bell’s dearth of support for his allegations regarding the
disappearance of his alleged administrative appeals, we cannot say that
administrative remedies were unavailable or futile in Bell’s case.
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II. Conclusion
For the foregoing reasons, we AFFIRM the district court.
Entered for the Court
Timothy M . Tymkovich
Circuit Judge
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