Mason v. Raemisch

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 16, 2021
• Docket: 19-1273
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 16, 2021 _________________________________ Christopher M. Wolpert Clerk of Court CECIL MASON; TERRY PHILLIPS; SPENCER BREWER; LEROY W. BAKER,

Plaintiffs - Appellants, No. 19-1273 v. (D.C. No. 1:17-CV-01013-DDD-MEH) (D. Colo.) RICK RAEMISCH, in his official capacity; ETHAN KELLOGG, in his individual capacity; DAVID SCHERBARTH, in his individual capacity; f/n/u QUINLAN, in his individual capacity,

Defendants - Appellees. _________________________________________

ORDER AND JUDGMENT * __________________________________________

Before BACHARACH, BRISCOE, and EID, Circuit Judges. ___________________________________

Congress requires some claimants to exhaust available administrative

remedies before suing in federal court. These claimants include inmates

* Oral argument would not materially help us to decide the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). So we have decided the appeal based on the appendix and the briefs.

Our order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). suing over prison conditions. Prison Litigation Reform Act, 42 U.S.C.

§ 1997e(a). Despite this requirement, four inmates—Mr. Cecil Mason, Mr.

Terry Phillips, Mr. Spencer Brewer, and Mr. Leroy Baker—sued over

prison conditions without exhausting their own available administrative

remedies, so the district court granted summary judgment to the

defendants. 1 The four inmates appeal, and we affirm.

The four inmates are Muslim and were about to conduct a prayer

service in the prison’s dayroom. But before the prayer service began, a

correctional officer discharged pepper spray into the dayroom. (The officer

later claimed that the discharge had been accidental; the inmates attributed

the discharge to animosity against Muslims.) The pepper spray lingered in

the air and required the inmates to cancel the prayer service.

A fifth inmate (Mr. Donell Blount) was in the group and exhausted

his available administrative remedies by filing grievances through the

prison’s grievance system. But he dismissed his suit, and the four other

inmates never filed their own grievances.

Though they didn’t file grievances, the four inmates argue that they

exhausted available administrative remedies through Mr. Blount, invoking

the doctrine of “vicarious exhaustion.” In considering this argument, we

1 With the grant of summary judgment, the court dismissed the suits without prejudice.

2 conduct de novo review. Thomas v. Parker, 609 F.3d 1114, 1117 (10th Cir.

2010).

Courts have recognized vicarious exhaustion in class actions,

concluding that class members can vicariously exhaust remedies through a

class representative. E.g., Chandler v. Crosby, 379 F.3d 1278, 1287 (11th

Cir. 2004). In addition, some courts have allowed victims of employment

discrimination to forego exhaustion and join a suit started by similarly

situated individuals who have exhausted their own administrative remedies.

E.g., Betcher v. Brown Schools, Inc., 262 F.3d 492, 494–95 (5th Cir.

2001). The parties dispute the applicability of these doctrines to prison

litigation.

Our Court has concluded that vicarious exhaustion is available only

when there’s a class action. McGoldrick v. Werholtz, 185 Fed. App’x 741,

743–44 (10th Cir. 2006) (unpublished). Though that conclusion was not

precedential, it is persuasive for inmate suits: When an inmate’s suit is not

brought as a class action, the Prison Litigation Requirement Act mandates

compliance with the applicable grievance policy. See Thomas, 609 F.3d at

1118 (requiring compliance with applicable regulations); see also Jernigan

v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (stating that substantial

compliance does not suffice). So if the applicable grievance policy

prohibits inmates from filing grievances on behalf of others, the Act would

3 not permit inmates to exhaust their administrative remedies by

piggybacking onto another inmate’s grievances.

The grievance policy here generally prohibits inmates from filing

grievances on behalf of other inmates. Appellant’s Amended App’x vol. 1,

at 97, 100. The only exception involves grievances for sexual assault, id. at

98, but the claims here involve the discharge of pepper spray, not sexual

assault. So the four inmates had to file their own grievances (just as Mr.

Blount did). Because the four inmates did not file their own grievances, we

affirm the award of summary judgment to the defendants.

Entered for the Court

Robert E. Bacharach Circuit Judge