FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 21, 2020 _________________________________ Christopher M. Wolpert Clerk of Court SAMUEL ROBINSON,
Plaintiff - Appellant,
v. No. 19-1325 (D.C. No. 1:18-CV-01691-RBJ-KLM) DARREN ADAME, individually and his (D. Colo.) official capacity; SERGEANT CHRISTOPHER BONGRINO, individually and his official capacity,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT * _________________________________
Before TYMKOVICH, Chief Judge, HOLMES, and MORITZ, Circuit Judges. _________________________________
In this 42 U.S.C. § 1983 excessive-force case, prisoner Samuel Robinson appeals
pro se from a district court order that granted Darren Adame’s and Christopher
Bongrino’s motion for summary judgment. 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. BACKGROUND
At the times relevant to this lawsuit, Robinson was an inmate in the custody of the
Colorado Department of Corrections. The Department maintains a three-step grievance
process for inmates to assert administrative complaints.
In July 2016, Robinson submitted a step-one grievance, alleging that correctional
officers Adame and Bongrino “choked [him] unconscious and tazed [him]” as he exited
his cell, handcuffed and attempting to accompany them to a disciplinary hearing. R at 92.
A grievance coordinator reviewed the evidence and denied Robinson’s grievance as
unsubstantiated.
In August, Robinson submitted a step-two grievance, repeating his allegations. A
grievance coordinator denied it, citing a lack of supporting evidence.
Under the Department’s policy, Robinson then had five days from his receipt of
the step-two denial to complete the grievance process by submitting a step-three
grievance. Two months beyond that deadline, however, on October 18, Robinson
submitted a step-three grievance. Therein, he repeated the facts of the alleged assault,
and he requested (1) an award of “funds . . . for [his] pain and suffering” and (2) that
“C.O. Adame be barred from any facility” he was incarcerated in. Id. at 94. A grievance
officer denied the step-three grievance, explaining that it was untimely and that it sought
relief not available through the process. Consequently, the officer closed the
administrative action.
2 In 2018, Robinson retained counsel and filed the instant § 1983 action in federal
district court. He alleged that Adame and Bongrino used excessive force against him,
causing “paralysis and permanent disabilities.” Id. at 11.
In response, Adame and Bongrino moved for summary judgment. A magistrate
judge recommended granting their motion on the basis that Robinson had not exhausted
his administrative remedies. Robinson’s attorney objected to the recommendation,
admitting the untimeliness of the step-three grievance, but arguing that exhaustion is not
required where “the requested relief of damages is not available to an inmate.” Id. at 168.
On de novo review, the district court overruled that objection and accepted the
magistrate judge’s recommendation. It then granted Adame’s and Bongrino’s motion and
dismissed Robinson’s claims with prejudice.
DISCUSSION I. Standards of Review
We review summary judgment decisions de novo, “view[ing] the evidence and
draw[ing] reasonable inferences therefrom in the light most favorable to the nonmoving
party.” Talley v. Time, Inc., 923 F.3d 878, 893 (10th Cir. 2019) (internal quotation marks
omitted). Summary judgment is required when “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). Also, “[w]e review de novo the district court’s finding of
failure to exhaust administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032
(10th Cir. 2002). Because Robinson appears pro se, we construe his filings liberally, but
3 we do not serve as his advocate. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d
836, 840 (10th Cir. 2005).
II. Exhaustion
Under the Prison Litigation Reform Act (PLRA), a prisoner cannot bring an action
“with respect to prison conditions under section 1983 . . . until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Proper exhaustion
requires compliance with all of the prison’s grievance procedures, including “deadlines
and other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 90 (2006). “The
only limit to § 1997e(a)’s mandate is the one baked into its text: An inmate need exhaust
only such administrative remedies as are ‘available.’” Ross v. Blake, 136 S. Ct. 1850,
1862 (2016).
Robinson argued in the district court that exhaustion was unnecessary because the
relief he sought—money damages—was unavailable in the grievance process. The
district court properly rejected that argument: “Even when the prisoner seeks relief not
available in grievance proceedings, notably money damages, exhaustion is a prerequisite
to suit.” Porter v. Nussle, 534 U.S. 516, 524 (2002).
On appeal, Robinson pursues a new unavailability argument. He states that he
timely submitted a step-three grievance, but Officer Adame tore it up four days before the
deadline. Granted, “an 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.” Tuckel v. Grover, 660 F.3d 1249, 1252 (10th Cir. 2011)
(brackets and internal quotation marks omitted). But under this court’s firm-waiver rule,
4 an argument not included in the objections to the magistrate judge’s recommendation is
waived. Davis v. Clifford, 825 F.3d 1131, 1137 n.3 (10th Cir. 2016).
There are exceptions to the firm-waiver rule for certain litigants proceeding
without counsel in the district court or when the interests of justice require review. See
Duffield v. Jackson,
Free access — add to your briefcase to read the full text and ask questions with AI
FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 21, 2020 _________________________________ Christopher M. Wolpert Clerk of Court SAMUEL ROBINSON,
Plaintiff - Appellant,
v. No. 19-1325 (D.C. No. 1:18-CV-01691-RBJ-KLM) DARREN ADAME, individually and his (D. Colo.) official capacity; SERGEANT CHRISTOPHER BONGRINO, individually and his official capacity,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT * _________________________________
Before TYMKOVICH, Chief Judge, HOLMES, and MORITZ, Circuit Judges. _________________________________
In this 42 U.S.C. § 1983 excessive-force case, prisoner Samuel Robinson appeals
pro se from a district court order that granted Darren Adame’s and Christopher
Bongrino’s motion for summary judgment. 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. BACKGROUND
At the times relevant to this lawsuit, Robinson was an inmate in the custody of the
Colorado Department of Corrections. The Department maintains a three-step grievance
process for inmates to assert administrative complaints.
In July 2016, Robinson submitted a step-one grievance, alleging that correctional
officers Adame and Bongrino “choked [him] unconscious and tazed [him]” as he exited
his cell, handcuffed and attempting to accompany them to a disciplinary hearing. R at 92.
A grievance coordinator reviewed the evidence and denied Robinson’s grievance as
unsubstantiated.
In August, Robinson submitted a step-two grievance, repeating his allegations. A
grievance coordinator denied it, citing a lack of supporting evidence.
Under the Department’s policy, Robinson then had five days from his receipt of
the step-two denial to complete the grievance process by submitting a step-three
grievance. Two months beyond that deadline, however, on October 18, Robinson
submitted a step-three grievance. Therein, he repeated the facts of the alleged assault,
and he requested (1) an award of “funds . . . for [his] pain and suffering” and (2) that
“C.O. Adame be barred from any facility” he was incarcerated in. Id. at 94. A grievance
officer denied the step-three grievance, explaining that it was untimely and that it sought
relief not available through the process. Consequently, the officer closed the
administrative action.
2 In 2018, Robinson retained counsel and filed the instant § 1983 action in federal
district court. He alleged that Adame and Bongrino used excessive force against him,
causing “paralysis and permanent disabilities.” Id. at 11.
In response, Adame and Bongrino moved for summary judgment. A magistrate
judge recommended granting their motion on the basis that Robinson had not exhausted
his administrative remedies. Robinson’s attorney objected to the recommendation,
admitting the untimeliness of the step-three grievance, but arguing that exhaustion is not
required where “the requested relief of damages is not available to an inmate.” Id. at 168.
On de novo review, the district court overruled that objection and accepted the
magistrate judge’s recommendation. It then granted Adame’s and Bongrino’s motion and
dismissed Robinson’s claims with prejudice.
DISCUSSION I. Standards of Review
We review summary judgment decisions de novo, “view[ing] the evidence and
draw[ing] reasonable inferences therefrom in the light most favorable to the nonmoving
party.” Talley v. Time, Inc., 923 F.3d 878, 893 (10th Cir. 2019) (internal quotation marks
omitted). Summary judgment is required when “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). Also, “[w]e review de novo the district court’s finding of
failure to exhaust administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032
(10th Cir. 2002). Because Robinson appears pro se, we construe his filings liberally, but
3 we do not serve as his advocate. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d
836, 840 (10th Cir. 2005).
II. Exhaustion
Under the Prison Litigation Reform Act (PLRA), a prisoner cannot bring an action
“with respect to prison conditions under section 1983 . . . until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Proper exhaustion
requires compliance with all of the prison’s grievance procedures, including “deadlines
and other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 90 (2006). “The
only limit to § 1997e(a)’s mandate is the one baked into its text: An inmate need exhaust
only such administrative remedies as are ‘available.’” Ross v. Blake, 136 S. Ct. 1850,
1862 (2016).
Robinson argued in the district court that exhaustion was unnecessary because the
relief he sought—money damages—was unavailable in the grievance process. The
district court properly rejected that argument: “Even when the prisoner seeks relief not
available in grievance proceedings, notably money damages, exhaustion is a prerequisite
to suit.” Porter v. Nussle, 534 U.S. 516, 524 (2002).
On appeal, Robinson pursues a new unavailability argument. He states that he
timely submitted a step-three grievance, but Officer Adame tore it up four days before the
deadline. Granted, “an 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.” Tuckel v. Grover, 660 F.3d 1249, 1252 (10th Cir. 2011)
(brackets and internal quotation marks omitted). But under this court’s firm-waiver rule,
4 an argument not included in the objections to the magistrate judge’s recommendation is
waived. Davis v. Clifford, 825 F.3d 1131, 1137 n.3 (10th Cir. 2016).
There are exceptions to the firm-waiver rule for certain litigants proceeding
without counsel in the district court or when the interests of justice require review. See
Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008). But neither exception applies
here. Specifically, Robinson was represented by counsel in the district court, and the
interests-of-justice exception is “narrow” in counseled cases. Key Energy Res. Inc. v.
Merrill (In re Key Energy Res., Inc.), 230 F.3d 1197, 1200 (10th Cir. 2000). It is so
narrow, in fact, that it applies in only “rare circumstance[s].” Id. (internal quotation
marks omitted). As explained below, this case does not present such circumstances.
Robinson states he told his counsel that Officer Adame tore up the original
step-three grievance, but his counsel “did not present this argument or . . . request[ ]
documents from the defendants on this matter.” Aplt. Opening Br. at 22. According to
Robinson, his counsel provided ineffective assistance by not pursuing Officer Adame’s
alleged interference with the grievance process. 1 But “[t]he general rule in civil cases is
that the ineffective assistance of counsel is not a basis for appeal or retrial.” Nelson v.
Boeing Co., 446 F.3d 1118, 1119 (10th Cir. 2006).
Further, the interests of justice do not compel review of an argument that was
eschewed by counsel and is facially suspect. In particular, there is no mention in
1 Robinson also contends that his attorney rendered ineffective assistance by not meeting with him in person and because he was subject to ongoing disciplinary proceedings that ultimately led to his disbarment. 5 Robinson’s October step-three grievance of Officer Adame hindering in any way the
timely submission of a step-three grievance. Further, Robinson does not provide a clear
account of the reasons he was unable to submit a step-three grievance before October 18.
Consequently, we conclude that Robinson’s new unavailability argument is waived. 2
Finally, Robinson contends the district court erred by dismissing his claims with
prejudice. He is mistaken. See Kikumura v. Osagie, 461 F.3d 1269, 1289 (10th Cir.
2006) (“[C]laims that have been properly denied by the prison as untimely are, practically
speaking, procedurally defaulted, and thus may be dismissed from the complaint . . . with
prejudice.”), overruled in part on other grounds as recognized in Robbins v. Oklahoma,
519 F.3d 1242, 1246-47 (10th Cir. 2008).
CONCLUSION
We affirm the district court’s judgment. We grant Robinson’s motion for leave to
proceed in forma pauperis, and we remind him that he must continue making partial
payments until the filing and docketing fees are paid in full. See 28 U.S.C. § 1915(b).
Finally, we deny Robinson’s motion to supplement the record with documents not
presented to the district court. See Cornhusker Cas. Co. v. Skaj, 786 F.3d 842, 862-63
2 Robinson initiated a separate round of grievances related to this matter, but he did not complete the process. Accordingly, the magistrate judge determined that he had not exhausted his administrative remedies. Robinson did not address that round of grievances in his objection to the magistrate judge’s recommendation and he does not address that round in this appeal. Thus, any exhaustion argument concerning that round of grievances is waived. See Sawyers v. Norton, 962 F.3d 1270, 1286 (10th Cir. 2020) (“Issues not raised in the opening brief are deemed abandoned or waived.” (internal quotation marks omitted)); Davis, 825 F.3d at 1137 n.3 (noting that any argument not included in the objections to the magistrate judge’s recommendation is waived). 6 (10th Cir. 2015) (observing that an appellate court has “discretion to deny a motion to
supplement the record on appeal when the materials sought to be added to the record
were never before the district court”).
Entered for the Court
Timothy M. Tymkovich Chief Judge