Carr v. Brill

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 10, 2006
• Docket: 06-1009
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS July 10, 2006 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

JACKIE LOYD CARR,

Plaintiff-Appellant, No. 06-1009 v. (D. Colorado) HOYTE BRILL, W arden, Kit (D.C. No. CIV-05-1284-Z) Carson Correctional Center (“KCCC”); M R. SLOAN, Assistant W arden, KCCC; M R. TRIM M ER, Principal, KCCC; M R. CARTER, Hearing Officer, KCC C; S. VAUGHN, Grievance Coordinator, KC CC; M IKE M AR TINEZ, Kitchen M anager, KCCC,

Defendants-Appellees.

OR DER AND JUDGM ENT *

Before H ENRY, BRISCO E, and O’BRIEN, 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Jackie Loyd Carr, a state prisoner appearing pro se, brings suit pursuant to

42 U.S.C. § 1983, alleging that prison officials: (1) discriminated against him by

firing him from his prison job to hire an African-American so that the prison

could meet racial quotas; (2) retaliated against him for filing a grievance about

prisoner pay by convicting him of misconduct; and (3) retaliated against him for

filing grievances about breakfast options by transferring him to a different

facility. W e exercise jurisdiction pursuant to 28 U.S.C. § 1291, and AFFIRM the

district court’s dismissal without prejudice for failure to exhaust administrative

remedies as required by 42 U.S.C. § 1997e(a).

I. BACKGROUND

M r. Carr’s complaint involves three separate incidents that form the factual

background for each of his three claims. First, in February 2003, M r. Carr was

terminated from his job at the prison library allegedly so that the prison could hire

an African-American to take his job, since at that time, no African-Americans

worked in the library. M r. Carr alleges that this termination violates his equal

protection rights. He asserts that he attempted to follow the grievance processes

available to Colorado prisoners, but prison officials restricted his access to the

process by refusing to accept his grievances and refusing to provide him with

grievance forms.

2 Second, in June 2003, M r. Carr submitted a grievance regarding a pay cut

for prisoners. He stated the following in the grievance: “I am sure the state has

not raised canteen prices 4 times in the last year, a [$]1.00 a day means we buy

our own hygiene, anything less we don’t work and let you buy our hygiene.” Rec.

doc. 12, at 11 (Notice of Charge(s), dated June 20, 2003). Prison officials

interpreted his use of the word “we” to constitute advocation of a facility

disruption. He was immediately placed in administrative segregation, and shortly

thereafter, convicted of misconduct. He contends that this segregation and

conviction constituted retaliation for his use of the grievance system to complain

about inm ate pay cuts. M r. C arr appealed the conviction on these grounds. He

contends that his appeal of the misconduct conviction exhausts his administrative

remedies because “th[ere] is no grievance process for Code of Penal Discipline . .

. . It has [its] own appeal process for exhaustion [of] remedies.” Aplt’s Brief at 3,

¶ 4. He has not argued that he submitted or attempted to submit any grievances

specifically regarding the alleged retaliation.

Third, in July 2003, M r. Carr began submitting grievances about the

unavailability of certain breakfast item s that he required because of his health

issues. In December 2003, he received a letter from a grievance officer certifying

that he had completed the grievance process and promising the availability of

certain foods. M r. Carr claims that the resolution this letter purports to have

instituted was discontinued after two weeks, and that when he tried to begin the

3 grievance process again prison officials retaliated against him by moving him to a

different prison facility.

After M r. Carr filed his complaint in the district court in July 2005, the

district court ordered him to amend his complaint and show that he had exhausted

his three claims. M r. Carr submitted an amended complaint, which the district

court dismissed in December 2005 for failure to exhaust administrative remedies.

It explained that although it appeared that M r. Carr had exhausted all

administrative remedies available to him with respect to his first and third claims

(regarding termination from his library job and retaliation by moving him to a

different prison facility), it held that he had not exhausted his administrative

remedies with respect to his second claim, that prison officials retaliated against

him for using the grievance process to challenge prisoner pay cuts.

On appeal, M r. Carr challenges the district court’s ability to dismiss his

amended complaint without first serving it on the defendants. He also challenges

the district court’s determination that he did not exhaust his administrative

remedies with respect to his second claim, pointing to the fact that he appealed

the misconduct conviction that he contends occurred solely as retaliation for

complaining about prisoner pay. For the reasons stated below, we AFFIRM the

district court.

II. D ISC USSIO N

W e review de novo a district court’s dismissal of a complaint for failure to

4 state a claim. M artinez v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005).

“‘[D]ismissal of a pro se complaint . . . is proper only where it is obvious that the

plaintiff cannot prevail on the facts he has alleged and it would be futile to give

him the opportunity to amend.’” Id. (quoting Gaines v. Stenseng, 292 F.3d 122,

1224 (10th Cir. 2002)). W e accept the allegations in the complaint as true, and

make all reasonable factual inferences in M r. Carr’s favor. Id. Additionally, w e

must construe his arguments liberally because he is pro se. Haines v. Kerner, 404

U.S. 519, 520 (1972).

A. Dismissal of Complaint Prior to Serving Defendants

M r. Carr first argues that the district court should not have dismissed his

amended complaint before it had been served on the defendants. This argument is

without merit. Congress enacted certain screening procedures for a district court

to use in all civil actions “in which a prisoner seeks redress from a governmental

entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a).

Under these procedures, a district court is required to review the prisoner’s claims

“before docketing, if feasible.” Id. Thus, the district court is not required to

serve the defendants before reviewing and, in appropriate cases, dismissing sua

sponte a prisoner’s complaint. See Christiansen v. Clarke, 147 F.3d 655, 658 (8th

Cir. 1998) (holding that the screening provisions of the PLRA are constitutional

and that district courts may dismiss meritless claims before serving defendants).

5 B. Exhaustion of Administrative Remedies

M r. Carr next argues that the district court erred by dismissing his

complaint for failure to exhaust administrative remedies. The Prison Reform

Litigation Act (“PLRA”) provides that “[n]o action shall be brought with respect

to prison conditions under section 1983 of this title . . . until such administrative

remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The prisoner

must exhaust all administrative remedies available even if administrative

procedures “would appear to be futile at providing the kind of remedy sought.”

Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). Additionally, when a

prisoner chooses to bring multiple claims regarding prison conditions, Ҥ

1997e(a) requires that all available prison grievance remedies must be exhausted

as to all of the claims. . . . [T]he presence of unexhausted claims . . . require[s]

the district court to dismiss [an] action in its entirety without prejudice.” Ross v.

County of Bernalillo, 365 F.3d 1181, 1188-89 (10th Cir. 2004).

Here, the district court held that M r. Carr had not exhausted his

administrative remedies with respect to his second claim that prison officials

retaliated against him by convicting him of misconduct, and dismissed his

complaint without prejudice. It reasoned that even though M r. Carr had appealed

the misconduct conviction, this appeal “merely upheld the conviction; it did not

address whether or not he was being retaliated against for filing a grievance.”

Rec. doc. 14, at 4 (D ist. Ct. Order, dated Nov. 30, 2005). On appeal, M r. Carr

6 urges that he did, in fact, exhaust all administrative remedies available to him

because when he appealed the misconduct conviction, he specifically argued that

prison officials instituted the charges in order to retaliate against him for filing

grievances.

M r. Carr is correct; his appeal did indeed address his argument that the

misconduct conviction was a form of retaliation for w riting a grievance. See id.,

doc. 12, at 14 (Am. Compl., filed Oct. 14, 2005). Nonetheless, M r. Carr did not

exhaust all available administrative remedies, as required by the PLRA. Although

the Colorado Department of Corrections (“DOC”) regulations explain that the

“grievance procedure may not be used to seek review of [misconduct]

convictions,” DOC Admin. Regs. 850-04(IV)(A)(4), they also specify that the

grievance procedure may be used to allege acts of retaliation. “Reprisals for the

good faith use of or participation in the grievance procedure are prohibited. A n

offender shall be entitled to file a new grievance alleging that such a reprisal

occurred.” Id. 850-04(IV)(B)(1)(c). Because M r. Carr could have filed a

grievance specifically concerning the retaliation, there was an available

administrative remedy that he did not utilize.

The grievance system is an important part of the administrative process that

cannot be overlooked by prisoners. The grievance process entails a documented

conversation between the prisoner and prison officials, requiring each to explain

their point of view, and fulfils the purpose of the exhaustion requirement – to give

7 prison officials a chance to handle a prisoner’s complaints internally and to create

an administrative record to help courts resolve the complaints that end in a

lawsuit. See Porter v. Nussle, 534 U.S. 516, 525 (2002). In contrast, when a

prisoner appeals a misconduct conviction, the prison officials need only provide a

cursory explanation of why the prisoner’s appeal fails: this fails to fulfill the

purposes of requiring exhaustion of administrative remedies when the grievance

process is also available.

This case in particular illustrates how proper use of the grievance process

provides courts with better, more detailed information about what occurred at the

administrative level. W ith respect to M r. Carr’s third claim, which it appears he

did exhaust, he received a four paragraph letter from a Step III Grievance Officer

reviewing his claim: the letter explained how the prison has responded, and stated

that he had exhausted his administrative remedies with respect to this issue. In

contrast, the inmate appeal form, which M r. Carr submitted as documentation of

his attempt to his exhaust administrative remedies with respect to his claim of

retaliation, merely requires a prison official to check a box stating that the

conviction is “upheld,” and includes space for only a very short explanation. Rec.

doc. 12, at 14 (Inmate A ppeal Form, case number 03-323, dated July 10, 2003).

Because M r. Carr did not use the grievance system to report the alleged

retaliation, he did not exhaust his available administrative remedies with respect

to this claim.

8 III. C ON CLU SIO N

Accordingly, we A FFIRM the district court’s dismissal of M r. Carr’s

complaint for failure to exhaust his administrative remedies as required by the

PLRA. W e GRANT M r. Carr’s motion to pay the filing fee in partial payments

and remind him of this continuing obligation.

Entered for the Court,

Robert H. Henry Circuit Judge