Plater v. Poirot

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 2, 2024
• Docket: 23-6131
• Status: Unpublished

Opinion

Appellate Case: 23-6131 Document: 010111089210 Date Filed: 08/02/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 2, 2024 _________________________________ Christopher M. Wolpert Clerk of Court RAHEEM LA’MONZE PLATER,

Plaintiff - Appellant,

v. No. 23-6131 (D.C. No. 5:22-CV-00779-R) EDEN POIROT; GEO GROUP, INC., (W.D. Okla.)

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT * _________________________________

Before TYMKOVICH, BACHARACH, and CARSON, Circuit Judges. _________________________________

Raheem La’Monze Plater, an Oklahoma state prisoner proceeding pro se,

appeals the district court’s judgment in favor of defendants on his claims under

42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act

(“RLUIPA”), 42 U.S.C. §§ 2000cc to 2000cc-5, for failure to exhaust administrative

remedies. He also appeals the district court’s denial of his post-judgment motion for

reconsideration. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-6131 Document: 010111089210 Date Filed: 08/02/2024 Page: 2

I. BACKGROUND

A. Relevant legal framework

The Prison Litigation Reform Act of 1996 (“PLRA”) provides that prior to

filing an action under 42 U.S.C. § 1983 “or any other Federal law,” a prisoner must

exhaust “such administrative remedies as are available.” 42 U.S.C. § 1997e(a); see

also Cutter v. Wilkinson, 544 U.S. 709, 723 (2005) (“[A] prisoner may not sue under

RLUIPA without first exhausting all available administrative remedies.”). “An

inmate who begins the grievance process but does not complete it is barred from

pursuing a § 1983 claim under PLRA for failure to exhaust his administrative

remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). “[A]n

untimely or otherwise procedurally defective administrative grievance or appeal” is

not sufficient to exhaust administrative remedies. Woodford v. Ngo, 548 U.S. 81,

83–84 (2006).

“Failure to exhaust under the PLRA is an affirmative defense.” Tuckel v.

Grover, 660 F.3d 1249, 1254 (10th Cir. 2011). Thus, the defendant has the initial

burden to show the plaintiff did not exhaust, and if that burden is met, “the onus falls

on the plaintiff to show that remedies were unavailable to him.” Id. “[A]n

administrative remedy is not ‘available’ under the PLRA if prison officials prevent,

thwart, or hinder a prisoner’s efforts to avail himself of the administrative remedy.”

Id. at 1252 (brackets and internal quotation marks omitted); see also Ross v. Blake,

578 U.S. 632, 644 (2016) (PLRA exhaustion is unavailable if “prison administrators

thwart inmates from taking advantage of a grievance process through machination,

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misrepresentation, or intimidation”). “Based on this principle, we have obligated

district courts to ensure that any defects in exhaustion are not procured from the

action or inaction of prison officials.” Tuckel, 660 F.3d at 1252 (brackets and

internal quotation marks omitted).

B. Oklahoma’s four-step grievance process

The Oklahoma Department of Corrections (“ODOC”) has a four-step

Inmate/Offender Grievance Process for resolving issues or complaints:

(1) discussion with the relevant staff member; (2) a written request to staff (“RTS”);

(3) a written grievance submitted to the appropriate reviewing authority (“RA”); and

(4) a written appeal to the appropriate administrative review authority (“ARA”). 1

The ARA appeal must be submitted “within 15 days of receipt of the reviewing

authority’s decision or any amended decisions.” R. at 248. An inmate may request

to submit an ARA appeal out of time where “a grievance has been denied by the

[RA] and the ARA or Medical ARA due to the grievance not being submitted in a

timely manner,” but he must make that request within 15 days of the ARA’s denial of

the ARA appeal and then resubmit the appeal. R. at 255-56. 2

1 The RA at a privately contracted facility is the on-site facility administrator. See R. at 245. The ARA is “[t]he division of the agency serving as the [ODOC] director’s designee, or the chief medical officer’s designee.” R. at 238. 2 The ODOC’s most recent version of the grievance process took effect on January 18, 2022. See “Inmate/Offender Grievance Process,” ODOC (last visited June 4, 2024), https://oklahoma.gov/content/dam/ok/en/doc/documents/policy/section- 09/op090124.pdf. However, most events in this case occurred prior to that date, and the parties have not argued that the revised policy applies. Like the district court, 3 Appellate Case: 23-6131 Document: 010111089210 Date Filed: 08/02/2024 Page: 4

C. Procedural history

Plater filed a civil action under 42 U.S.C. § 1983 against multiple defendants,

including Eden Poirot, who is an employee at the Lawton Correctional and

Rehabilitation Facility (“LCRF”) where Plater is incarcerated, and GEO Group, Inc.,

which is a private corporation that operates LCRF under a contract with ODOC. The

district court determined that Plater failed to exhaust his administrative remedies,

granted the defendants’ summary judgment motion, and dismissed the case. See

Plater v. Poirot, No. CIV-21-899, 2022 WL 1782603, at *1 (W.D. Okla. June 1,

2022) (unpublished) (“Plater I”). Plater then sought to refile his complaint in the

same case, asserting he had corrected his failure to exhaust. The district court

rejected that effort because it had closed the case and told Plater he could file a new

case if he thought he had rectified his failure to exhaust.

Plater did so, this time naming only Poirot and GEO Group (together,

“Defendants”). He asserted violations of various constitutional rights and a RLUIPA

violation. 3 Plater alleged that after he requested to be housed in a single cell for his

own safety, Defendants retaliated by putting him on property restriction from

April 21, 2021, through May 8, 2021, and seizing his property, including pens, legal

materials, a Quran, toiletries, bedding, towels, shirts, and pants. As a result of the

therefore, we look to the version of the grievance process defendants submitted to the district court, which was effective October 18, 2017, see R. at 237–57. 3 Plater also asserted a claim of fraud under Oklahoma law, but the district court declined to exercise supplemental jurisdiction over that claim. Plater does not challenge that decision on appeal. 4 Appellate Case: 23-6131 Document: 010111089210 Date Filed: 08/02/2024 Page: 5

alleged deprivations, he could not stay warm, sleep, properly clean himself, grieve

his abuse, or pray. He asserted that in response to an RTS, Poirot untruthfully stated

that his property restriction was in accordance with prison policy or that his property

had been returned to him. Plater viewed these responses as fraudulent and an effort

to thwart his use of the grievance procedure.

Defendants moved to dismiss the action or, alternatively, for summary

judgment, based on several grounds, including that Plater failed to exhaust his

administrative remedies. Plater responded that after the court dismissed Plater I, he

exhausted administrative remedies for two grievances, numbers 369-21 and 370-21,

“at the ARA level as of 06/14/22,” R. at 288. 4

A magistrate judge recommended granting the motion for summary judgment

on Plater’s federal claims for failure to exhaust administrative remedies because the

ARA’s denial of the appeals as untimely showed Plater had not submitted them in a

timely manner.

Plater filed a timely objection to the recommendation. He argued (as he had in

Plater I) that he gave his ARA appeals to an LCRF officer, Ashley Katzinger, to mail

on his behalf, but Officer Katzinger discarded them. He did not specify the date on

which he allegedly gave the appeals to Officer Katzinger but instead stated only that

he had 15 days to mail an appeal, “which he did through Officer Katzinger.”

4 That date was not only two weeks after the district court dismissed his first case, but also more than a year after the RA denied the two grievances and thus well beyond the 15-day period for filing an ARA appeal. 5 Appellate Case: 23-6131 Document: 010111089210 Date Filed: 08/02/2024 Page: 6

R. at 319. He also argued that he could not request to file his ARA appeals out of

time because ODOC policy allows such a request only where both the RA and the

ARA have denied a grievance as untimely, and untimeliness was not among the

reasons the RA denied grievances 369-21 and 370-21. Plater also filed a motion for

summary judgment.

The district court overruled the objection, adopted the recommendation, and

granted defendants’ motion for summary judgment on the federal claims for failure to

exhaust. The court observed that Plater did “not state when he” filed the ARA

appeals, and the court was “unable to discern the date based on the materials

provided,” R. at 350–51 nn. 6–7, which included copies of the ARA’s denials of his

appeals as untimely that Plater had filed in Plater I in June 2022, after the court had

dismissed that case. Thus, the court concluded, it appeared Plater filed the two ARA

appeals more than a year after receiving the responses to grievances 369-21 and

370-21, and after the court had dismissed Plater I. Further, the court determined

there was no indication he requested to file the appeals out of time. Finally, the court

denied Plater’s motion for summary judgment.

Plater filed a motion for reconsideration under Federal Rule of Civil

Procedure 59(e). He argued it was plain from his objections that he gave his ARA

appeals to Officer Katzinger sometime during the 15-day window for filing them, but

he again never specified the date, only a date range of June 3 to June 17, 2021. The

district court denied the motion because Plater had provided no evidentiary support

for his allegation that Officer Katzinger thwarted his effort to exhaust, such as a copy

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of a timely-filed appeal, despite that ODOC’s grievance process requires inmates “to

maintain a copy of the [ARA] appeal and related grievance paperwork for their

record,” R. at 248. The court also concluded that because the ARA has 30 days to

respond to an appeal or notify an inmate that the ARA requires an additional 30 days

to do so, Plater’s failure to receive a final ruling by August 2021 put him on notice

that the ARA had not received his appeals; yet Plater never alleged he tried to inquire

about the status of his appeals or otherwise correspond with the ARA until he filed

his appeals in June 2022. This appeal followed.

II. DISCUSSION

A. Standard of review

We review de novo a district court’s decision to grant summary judgment,

applying the same standard governing the district court. Rivero v. Bd. of Regents of

Univ. of N.M., 950 F.3d 754, 758 (10th Cir. 2020). A district “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.” Fed. R. Civ.

P. 56(a). “We view all facts and evidence in the light most favorable to the party

opposing summary judgment.” Craft Smith, LLC v. EC Design, LLC, 969 F.3d 1092,

1099 (10th Cir. 2020) (internal quotation marks omitted). We review the denial of a

Rule 59(e) motion for an abuse of discretion. See Nelson v. City of Albuquerque,

921 F.3d 925, 929 (10th Cir. 2019). Because Plater represents himself, we construe

his filings liberally, but we may not act as his advocate. See Yang v. Archuleta,

525 F.3d 925, 927 n.1 (10th Cir. 2008).

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B. Analysis

As the district court concluded, the record evidence in this case shows that

Plater properly completed only the first three steps in the grievance process with

respect to grievances 369-21 and 370-21, not all four. The ARA denied his appeals

as untimely, and “an untimely or otherwise procedurally defective administrative

grievance or appeal” is not sufficient to exhaust administrative remedies, Woodford,

548 U.S. at 83–84. Although Plater alleged he gave Office Katzinger his ARA

appeals and she failed to mail them, he provided no supporting evidence, such as his

own sworn declaration or affidavit attesting to that allegation or, as the district court

observed, copies of the appeals that he should have retained per the grievance policy.

See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (explaining when a party

moves for summary judgment, “the adverse party must respond with affidavits or

other evidence to show a genuine issue of material fact” (emphasis added)); May v.

Segovia, 929 F.3d 1223, 1235 (10th Cir. 2019) (rejecting allegation that prison

officials rendered grievances undeliverable in part because plaintiff “provide[d] no

evidence to support [the] allegation beyond the allegation itself”).

Plater now attempts to remedy this problem by attaching to his opening brief

on appeal copies of what he contends are the ARA appeals he gave Officer Katzinger,

asserting that the date on them, June 8, 2021, is the date he gave them to her. Plater

claims that until the district court denied his Rule 59(e) motion, he was unaware that

copies of these appeals would have aided his effort to avoid summary judgment in the

absence of video evidence of him handing his ARA appeals to Officer Katzinger in

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the prison law library. As to that alleged video evidence, he asserts it became

unavailable because the district court refused a request he made, apparently in

Plater I, for an order requiring Defendants to preserve the video.

Given that Plater attached many RTSs and grievances to his Rule 59(e)

motion, we are not persuaded he was unaware of the potential benefit of submitting

copies of the ARA appeals he gave to Officer Katzinger, even accounting for the lack

of any direct evidence that might have been videorecorded. In any event, our review

is limited to the record that was before the district court. Regan-Touhy v. Walgreen

Co., 526 F.3d 641, 648 (10th Cir. 2008). We therefore will not consider the ARA

appeals he has submitted for the first time on appeal. 5

Plater makes much of the fact that the RA denied grievances 369-21 and

370-21 for reasons different from the reasons the RA gave for denying prior versions

of those grievances. Plater claims this amounted to sandbagging because he only had

one attempt to resubmit the grievances to correct the problems the RA initially

identified. This argument overlooks that Plater still could have exhausted his

5 One observation, however, is in order. Plater’s reliance on the appeals he attached to his opening brief necessarily rests on the premise that he had copies of those appeals because he adamantly claims the RA does not keep copies of his ARA appeals. Yet he provides no explanation why he never told the district court he gave the appeals to Officer Katzinger on June 8, 2021, but instead claimed only that he gave them to her sometime between June 3 and June 17, 2021. This unexplained inconsistency strongly suggests the copies Plater has attached to his appellate brief are recent fabrications. His contention that the revision date on the forms (April 2017) proves he could not have manufactured them in 2024 because that form was discontinued in 2022 is unsubstantiated and unpersuasive.

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administrative remedies by raising those alleged errors in a timely ARA appeal, but

his ARA appeals were untimely.

Plater also argues (1) that he should be excused from PLRA’s exhaustion

requirement because Defendants’ “machinations” chilled him from inquiring into the

ARA’s failure to provide a timely response to the grievances he allegedly gave

Officer Katzinger; and (2) the Defendants should be equitably estopped from

asserting failure to exhaust as an affirmative defense. But Plater raised neither of

these arguments in the district court in this case. 6 And he has not argued for

plain-error review on appeal. He therefore has waived the arguments, and we decline

to review them. See United States v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019).

III. CONCLUSION

We affirm the district court’s judgment and its order denying Plater’s

Rule 59(e) motion. We grant Plater’s motion to proceed on appeal without

prepayment of fees or costs.

Entered for the Court

Timothy M. Tymkovich Circuit Judge

6 We disagree with Plater that his efforts to demonstrate that Officer Katzinger led him to believe she mailed his ARA appeals are consistent with a “chilling” theory. Even construed liberally, those efforts are too attenuated to preserve for appellate review the expansive “chilling” argument he now presents. See Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1141 (10th Cir. 2007) (explaining that “vague and ambiguous presentation of a theory before the trial court” does not “preserve that theory as an appellate issue” (internal quotation marks omitted)). And although Plater notes he raised equitable estoppel in Plater I, that does not suffice for purposes of this case. 10