Aaron v. Whetsel , 147 F. App'x 5 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 27, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
JASON J.C. AARON, IV,
Plaintiff-Appellant, No. 04-6293
v. (W.D. Oklahoma)
JOHN WHETSEL: OFFICER (D.C. No. CIV-04-477-T)
GILBERT: JOHN DOE,
UNNAMED CITY OFFICER, and
WILLIAM CITTY,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before EBEL, McKAY, and HENRY, Circuit Judges.
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 F ED . R. A PP . P. 34(a)(2); 10 TH C IR . 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This order and judgment is not binding precedent, except under the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. 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.
Jason J.C. Aaron, IV filed this action pursuant to 42 U.S.C. § 1983 against
Oklahoma County Sheriff John Whetsel and three Oklahoma City police officers.
Mr. Aaron alleged that, while he was incarcerated at the Oklahoma County
Detention Center, Sheriff Whetsel allowed the defendant police officers to beat
him and subsequently denied him adequate medical care, in violation of the
Eighth Amendment prohibition against cruel an unusual punishment. Applying
the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), the magistrate
judge recommended dismissal of Mr. Aaron’s complaint for failure to exhaust
administrative remedies. The district court adopted the magistrate’s judge’s
recommendation.
Upon review of the record and the applicable law, we conclude for
substantially the same reasons as set forth in the magistrate’s report and
recommendation that the dismissal of Mr. Aaron’s complaint was proper. “[The
PLRA’s] statutory exhaustion requirement . . . is mandatory, and the district court
is not authorized to dispense with it.” Beaudry v. Corr. Corp. of Am., 331 F.3d
1164, 1167 n.5 (10th Cir. 2003), cert. denied, 540 U.S. 1118. (2004).
We note that in a supplement to his appellate brief, Mr. Aaron indicates
that he has now filed a grievance and that his grievance has been denied.
Although that fact may warrant the filing of a new complaint, it does not establish
that the district court erred in dismissing Mr. Aaron’s initial complaint. See
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McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (stating that Ҥ
1997e(a) requires exhaustion before the filing of a complaint and that a prisoner
does not comply with this requirement by exhausting available remedies during
the course of the litigation”) (emphasis added). 1 Mr. Aaron does not dispute that,
as of August 2, 2004, when the district court dismissed his complaint, he had not
filed a written grievance, as required by the Oklahoma County Detention Center’s
policies.
Accordingly, we AFFIRM the district court’s dismissal of Mr. Aaron’s
complaint without prejudice. 2
Entered for the Court,
Robert H. Henry
Circuit Judge
1
Of course, we express no opinion on the sufficiency of any such complaint
that Mr. Aaron may file in the future.
2
We GRANT Mr. Aaron’s motion to pay the filing fee in partial payments.
We remind Mr. Aaron that he is required to make partial payments until the entire
fee is paid.
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