Allen v. 1998 Chief Medical Officer , 211 F. App'x 791 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
January 9, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
R ICHA RD LEE A LLEN ,
Plaintiff - Appellant, No. 06-6177
v. (W .D. Oklahoma)
1998 CHIEF M EDICAL OFFICER; (D.C. No. 05-CV -00482-HE)
JACK GREGSTON, M .D.; M ARK
FOGLE, M .D.,
Defendants - Appellees.
OR D ER AND JUDGM ENT *
Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges. **
Plaintiff-Appellant Richard Lee Allen, a state prisoner appearing pro se,
filed a complaint pursuant to 42 U.S.C. § 1983, alleging that he received
inadequate medical treatment in violation of his constitutional rights during his
*
This order and judgment is not binding precedent, except under the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 10 TH C IR . R. 36.3.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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.
incarceration in a private prison. He appeals the district court’s dismissal without
prejudice for failure to fully exhaust administrative remedies, and the district
court’s denial of his request to appoint counsel. W e exercise jurisdiction pursuant
to 28 U.S.C. § 1291, and affirm.
I. BACKGROUND
M r. Allen is an inmate in the custody of the Oklahoma D epartment of
Corrections. From August 1998 through M ay 13, 2004, M r. Allen was
incarcerated at the Lawton Correctional Facility (LCF), a private prison.
Throughout his incarceration at LCF, he sought and received treatment for a
deteriorating spinal condition. On M ay 13, 2004, he was transferred to the
Howard M cLeod Correctional Center.
On November 14, 2004, M r. Allen filed this action, alleging that during his
time at LCF (1) the defendant doctors denied him adequate medical care in
violation of the Eighth Amendment; (2) each defendant was deliberately
indifferent to his medical needs; and (3) the unidentified “1998 Chief M edical
Officer” deprived him of life’s minimal necessities and endangered his present
and future health.
The defendant doctors filed a motion to dismiss, or alternatively, for
summary judgment, arguing in part that M r. Allen failed to exhaust his
administrative remedies. In his response, M r. Allen sought to amend his
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complaint to add the Director of the O klahoma Department of Corrections as a
defendant and requested that the Department be compelled to provide the acting
Director’s name.
In a thorough report and recommendation, the magistrate judge
recommended dismissal of all claims. Specifically, the magistrate judge
recommended that the district court (1) dismiss the complaint against the
defendant doctors w ithout prejudice because M r. Allen failed to exhaust all
administrative remedies; (2) dismiss the complaint against the unidentified 1998
Chief M edical Officer without prejudice because M r. Allen failed to timely effect
service under Federal Rule of Civil Procedure 4(m); and (3) deny the motion to
amend because M r. Allen failed to assert that the acting Director of the Oklahoma
Department of Corrections personally participated in the alleged constitutional
deprivations and failed to demonstrate that the claims against the current Director
had been exhausted. The district court adopted the report and recommendation in
full. It also denied M r. A llen’s motion for appointment of counsel.
II. DISCUSSION
A. F AILURE TO E XHAUST
M r. Allen appeals the dismissal without prejudice of his claims against the
defendant doctors, but he does not contest the dismissal of the unidentified 1998
Chief M edical Officer or the denial of his motion to amend.
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W e review de novo a district court’s dismissal of a complaint for failure to
exhaust administrative remedies. Patel v. Fleming, 415 F.3d 1105, 1108 (10th
Cir. 2005). W e accept M r. Allen’s allegations in his complaint as true, and make
all reasonable factual inferences in his favor. M artinez v. Garden, 430 F.3d 1302,
1304 (10th Cir. 2005). M oreover, we construe his arguments liberally because he
is pro se. Id.Section 1997e(a) of the Prison Litigation Reform Act (PLRA) commands
that “‘[n]o action shall be brought with respect to prison conditions’ until a
prisoner exhausts his available administrative remedies.” Steele v. Fed. Bureau of
Prisons, 355 F.3d 1204, 1206 (10th Cir. 2003) (quoting 42 U.S.C. § 1997e(a)).
“[T]he substantive meaning of § 1997e(a) is clear: Resort to a prison grievance
process must precede resort to a court.” Id. at 1207 (internal quotation marks,
brackets, and citation omitted). Additionally, the PLRA contains a total
exhaustion requirement, and “the presence of unexhausted claims in [a prisoner’s]
complaint require[s] the district court to dismiss his action in its entirety without
prejudice.” Ross v. County of Bernalillo, 365 F.3d 1181, 1189 (10th Cir. 2004).
As the magistrate judge noted, proper exhaustion in this case would have
entailed full compliance with the three-step grievance procedure of the Oklahoma
Department of Corrections as to each of M r. Allen’s claims. On appeal, M r.
Allen concedes that he failed to exhaust that procedure; however, he contends that
“special circumstances . . . could excuse [his] failed efforts to exhaust.” A plt’s
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Br., Attachment 2, at 6. He argues that his “state of mind” and “distressed
condition” during his imprisonment at LCF should exempt him from the
exhaustion requirement. Aplt’s M otion for Leave to Proceed on Appeal W ithout
Prepayment of Costs or Fees, Attachment 2, at 15. He also argues that his
transfer to a new prison in 2004 prevented him from complying with the
Oklahoma Department of Corrections’s grievance process.
W e must disagree. The Supreme Court has “stress[ed] the point” that we
cannot “read futility or other exceptions into [the PLRA’s] exhaustion
requirement where Congress has provided otherwise.” Booth v. Churner, 532
U.S. 731, 741 n.6 (2001). Thus, “[e]ven where the ‘available’ remedies would
appear to be futile . . . the prisoner must exhaust the administrative remedies
available.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002).
Accordingly, M r. Allen’s admitted failure to fully exhaust all available
administrative remedies cannot be excused, and the district court correctly
dismissed without prejudice M r. A llen’s action against the defendant doctors.
Because M r. Allen’s complaint contains unexhausted claims, it must be dismissed
in its entirety. Ross, 365 F.3d at 1189.
B. A PPOINTMENT OF C OUNSEL
M r. Allen appeals the district court’s denial of his motion to appoint
counsel. Additionally, he has filed a motion in this court requesting the
appointment of counsel on this appeal.
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“W e review the denial of appointment of counsel in a civil case for an
abuse of discretion.” Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995).
Because M r. Allen failed to exhaust his administrative remedies in conformity
with § 1997e(a), prior to filing suit in federal court, the district court did not
abuse its discretion in denying M r. Allen’s request. Similarly, appointment of
counsel in this appeal is not warranted.
III. CONCLUSION
Having thoroughly reviewed the magistrate judge’s report and
recommendation, the district court’s order, the parties’ briefs, the record on
appeal, and the pertinent law, we agree with the district court’s ruling and
AFFIRM its dismissal of M r. Allen’s claims without prejudice pursuant to 42
U.S.C. § 1997e(a). Further, M r. A llen’s motion to appoint counsel is DENIED.
W e remind M r. Allen that he must continue making partial payments until the
entire filing fee has been paid.
Entered for the Court
Robert H. Henry
Circuit Judge
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