McGowan v. Huddleston

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 30, 2020
• Docket: 19-1457
• Status: Unpublished

Opinion

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

FOR THE TENTH CIRCUIT October 30, 2020 _________________________________ Christopher M. Wolpert Clerk of Court MICHAEL MCGOWAN,

Plaintiff - Appellant,

v. No. 19-1457 (D.C. No. 1:18-CV-03353-CMA-NRN) C. HUDDLESTON, ADX Nurse; JONES, (D. Colo.) ADX Nurse; WILLIAMS, ADX Nurse; M. PALIDER, Lieutenant; J. ARMIJO, Lieutenant; S. SCARBROUGH, Lieutenant; D. BEHLE, Lieutenant; D. MURTON, Lieutenant; N. RUDD, Lieutenant,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HARTZ, McHUGH, and EID, Circuit Judges. _________________________________

Michael McGowan is a pro se Mississippi inmate in the custody of the Bureau

of Prisons (BOP). He appeals the district court’s grant of summary judgment on his

Eighth Amendment claim for failure to exhaust administrative remedies. We affirm.

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I

Mr. McGowan filed an amended complaint under Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), claiming he

was denied adequate medical care and repeatedly placed in four-point restraints in

violation of the Eighth Amendment. He also claimed he was improperly transferred

from Mississippi into BOP custody. On initial screening, the district court adopted a

magistrate judge’s report and recommendation to dismiss the improper-transfer claim

as frivolous. Defendants then moved for summary judgment on the Eighth

Amendment claims, arguing that Mr. McGowan failed to exhaust his administrative

remedies. A magistrate judge agreed and recommended granting the motion. After

the time had passed for Mr. McGowan to object to that recommendation, the district

court adopted it and entered summary judgment on both Eighth Amendment claims.

Mr. McGowan now appeals the entry of summary judgment on his Eighth

Amendment unlawful-restraint claim, insisting he exhausted it. 1

II

As an initial matter, we reject defendant’s contention that this appeal is barred

by the firm waiver rule. Under this court’s firm waiver rule, “the failure to make

timely objections to the magistrate[ judge’s] findings or recommendations waives

1 Mr. McGowan’s opening brief does not contest the disposition of his improper-transfer and denial-of-medical-care claims, so we do not consider those rulings. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant’s opening brief.”). 2 appellate review of both factual and legal questions.” United States v. One Parcel of

Real Prop., 73 F.3d 1057, 1059 (10th Cir. 1996) (internal quotation marks omitted).

The firm waiver rule “does not apply, however, when (1) a pro se litigant has not

been informed of the time period for objecting and the consequences of failing to

object, or when (2) the interests of justice require review.” Morales-Fernandez v.

INS, 418 F.3d 1116, 1119 (10th Cir. 2005) (italics and internal quotation marks

omitted).

The magistrate judge’s report and recommendation warned Mr. McGowan of

the consequences of failing to timely object, but he contends he did not receive it

until the time for objecting had already run. He says the district court clerk sent the

report and recommendation to the wrong address at the Federal Transfer Center in

Oklahoma City, Oklahoma (FTC-Oklahoma City) after he had already been

transferred to another prison in California (MDC-Los Angeles). This explanation

finds some support in the record. Specifically, before the report and recommendation

issued, Mr. McGowan notified the district court on October 11, 2019, of his new

address at MDC-Los Angeles. See Dist. Ct. Doc. 47. Then on October 24, he

notified the court that his address had changed back to FTC-Oklahoma City and that

it would change again, although he did not specify another address. See Dist. Ct.

Doc. 52. Several days later, on November 1, the magistrate judge issued the report

and recommendation, notifying Mr. McGowan that he had fourteen days to object.

Mr. McGowan did not object, but on November 25, he notified the court that he had

been transferred once again to MDC-Los Angeles, although he did not indicate when

3 he had been transferred. See Dist. Ct. Doc. 57. The record does not reflect his

whereabouts on November 1, but on January 7, 2020, Mr. McGowan notified the

court that he was being transferred from MDC-Los Angeles back to FTC-Oklahoma

City and that he would eventually be transferred to the United States Penitentiary in

Florence, Colorado. See Dist. Ct. Doc. 68.

Given the record’s lack of clarity regarding Mr. McGowan’s whereabouts on

November 1, the number of times he was transferred immediately before and after the

magistrate judge issued his report and recommendation, and Mr. McGowan’s efforts

to inform the court of his whereabouts, we decline to apply the firm waiver rule and

proceed to the merits of this appeal. See Casanova v. Ulibarri, 595 F.3d 1120,

1123-24 (10th Cir. 2010) (concluding that the inmate’s efforts to comply with the

firm waiver rule and the plausibility of his explanation for failing to do so weighed in

favor of excusing him from the rule’s application).

III

“We review summary judgment decisions de novo, applying the same legal

standard as the district court.” May v. Segovia, 929 F.3d 1223, 1234 (10th Cir. 2019)

(internal quotation marks omitted). “‘The court shall grant summary judgment if the

movant shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). “We

also review de novo the finding that Mr. [McGowan] failed to exhaust his

administrative remedies.” Id. (internal quotation marks omitted).

4 The Prison Litigation Reform Act (PLRA) states that “‘[n]o action shall be

brought with respect to prison conditions by a prisoner . . . until such administrative

remedies as are available are exhausted.’” Id. at 1226 (quoting 42 U.S.C. § 1997e(a))

(ellipsis omitted). To satisfy the exhaustion requirement, an inmate must properly

exhaust his administrative remedies. See Woodford v. Ngo, 548 U.S. 81, 93 (2006).

“Because the prison’s procedural requirements define the steps necessary for

exhaustion, an inmate may only exhaust by properly following all of the steps laid

out in the prison system’s grievance procedure.” Little v. Jones, 607 F.3d 1245, 1249

(10th Cir. 2010) (citation omitted). “The level of detail necessary in a grievance to

comply with the grievance procedures will vary from system to system and claim to

claim, but it is the prison’s requirements, and not the PLRA, that define the

boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). Absent

a specific administrative directive, “a grievance satisfies § 1997e(a)’s exhaustion

requirement so long as it provides prison officials with enough information to

investigate and address the inmate’s complaint internally.” Kikumura v. Osagie,

461 F.3d 1269, 1285 (10th Cir. 2006), overruled on other grounds as recognized in

Robbins v. Oklahoma, 519 F.3d 1242, 1246 (10th Cir. 2008).

Mr. McGowan contends he exhausted his unlawful-restraint claim by filing

grievance number 952248. Defendants do not dispute this grievance was exhausted.

See Resp. Br. at 5. The problem for Mr. McGowan, however, is that in grievance

number 952248, he sought to be transferred back into the custody of the Mississippi

Department of Corrections (MDOC), not to stop the BOP’s alleged use of four-point

5 restraints. He wrote that the MDOC and the BOP entered into “Intergovernmental

Agreement # 797-9” (the Agreement) but the BOP was “refusing to abide by” it.

R. at 416. He asserted the BOP was bound to follow MDOC’s “laws, rules and

regulations,” and he averred, “I have constantly stated Mississippi does not have a

punishment of ambulatory or 4 point restraints.” Id. He therefore requested to be

returned to MDOC custody or to have the BOP adhere to the Agreement. See id. But

prison officials denied the grievance as repetitive of earlier grievances in which

Mr. McGowan had similarly requested to be transferred back to the MDOC.

Mr. McGowan insists grievance number 952248 was not repetitive of earlier

grievances, but that argument is beside the point. The dispositive issue is whether

Mr. McGowan satisfied the exhaustion requirement by referencing the BOP’s alleged

use of four-point restraints in seeking to be transferred back into MDOC custody.

We conclude that he did not. The governing BOP regulations state that an inmate

may file a grievance form raising “a single complaint or a reasonable number of

closely related issues.” 28 C.F.R. § 542.14(c)(2). “If the inmate includes on a single

form multiple unrelated issues, the submission shall be rejected and returned without

a response, and the inmate shall be advised to use a separate form for each unrelated

issue.” Id. “If more space is needed, the inmate may use [a] continuation page.” Id.

§ 542.14(c)(3).

Mr. McGowan did not use a continuation page in lodging his grievance. He

submitted only the grievance form seeking to be returned to MDOC custody because

the BOP was violating the Agreement. Although he mentioned that the MDOC does

6 not use ambulatory or four-point restraints, this was either an unrelated issue that

would have been rejected, or, at best, a “closely related” issue to support his assertion

that the BOP was violating the Agreement, presumably by using four-point restraints,

thereby justifying his transfer back to the MDOC. Either way, Mr. McGowan could

have, but did not, elaborate on his reference to four-point restraints. He attempts to

do so now, arguing that the “only relief [he] deem[ed] legitimate [was] to be released

from the [Agreement], which [was] holding him in [BOP] custody,” Aplt. Br. at 2,

but he fails to explain why he did not simply request that staff stop using four-point

restraints. In any event, the focus of the grievance was that Mr. McGowan should be

returned to the MDOC because the BOP was violating the Agreement. Given this

context, Mr. McGowan’s reference to four-point restraints was not enough to exhaust

a separate unlawful-restraint claim. Instead, it appears more likely that grievance

number 952248 aimed to exhaust Mr. McGowan’s improper-transfer claim, which is

not before us. Accordingly, the district court properly granted summary judgment.

IV

The judgment of the district court is affirmed. Mr. McGowan’s motion to

proceed on appeal without prepayment of filing fees is granted, and he is reminded of

his obligation to continue making partial payments toward his appellate filing fee

until the entire balance is paid in full. See 28 U.S.C. § 1915(b)(1)-(2).

Entered for the Court

Allison H. Eid Circuit Judge