Phillips-Bey v. Barnard , 192 F. App'x 771 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 21, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JO SEPH R. PH ILLIPS-B EY ,
Plaintiff-Appellant, No. 06-6022
v. (W .D. Oklahoma)
CLIFFORD BARNARD, Unit (D.C. No. 04-CV-1116-M )
M anager; R ON CH A MPIO N ,
W arden of Security; and M R.
DORAW ASS, Institutional
Property Room Supervisor,
Defendants-Appellees.
OR D ER AND JUDGM ENT *
Before H E N RY, BR ISC OE, and O’BRIEN, 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This order and judgment is not binding precedent, except under the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
may be cited under the terms and conditions of 10th Cir. R. 36.3.
Joseph R. Phillips-Bey, an Oklahoma state prisoner proceeding pro se,
appeals the district court’s dismissal of his claims, which alleged under 42 U.S.C.
§ 1983 that the prison official-defendants: (1) violated his First Amendment right
to free exercise of religion and discriminated against him because of his religion,
in violation of the Equal Protection Clause of the Fourteenth Amendment; (2)
failed to provide him an opportunity to be heard w ith respect to a disciplinary
hearing and refused to return an allegedly confiscated radio, in violation of the
Due Process Clause of the Fourteenth Amendment; and (3) forced him to remain
in protective custody, in violation of the Eighth A mendment. W e exercise
jurisdiction pursuant to 28 U.S.C. § 1291, and affirm the district court’s dismissal
without prejudice for failure to exhaust administrative remedies as required by 42
U.S.C. § 1997e(a).
I. BACKGROUND
M r. Phillips-Bey alleges various constitutional violations that arise out of
distinct events. W ith respect to his first claim, abridgement of his First
Amendment right to free exercise of religion and his Fourteenth Amendment right
to equal protection, M r. Phillips-B ey contends that he was denied the opportunity
for fellowship with other M uslims, and that the defendants did not allow him “to
receive Islamic reading materials or prayer rugs and headdress materials.” A plt’s
Br. at 3. Additionally, he alleges that he was treated differently from other
similarly-situated inmates who were permitted to exercise their religion.
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Regarding his second claim, alleging violations of his Fourteenth
Amendment Due Process rights, M r. Phillips-B ey contends that prison officials
violated his due process rights by failing to provide him adequate notice and a
hearing regarding disciplinary charges and by refusing to return a radio they had
confiscated from his cell.
Finally, with respect to his third claim, M r. Phillips-Bey alleges that prison
officials violated his Eighth Amendment right to be free from cruel and unusual
punishment by transferring him to protective custody and out of the general
prison population.
In a thorough report and recommendation, the magistrate judge
recommended dismissal of all claims, finding that M r. Phillips-B ey had failed to
state a claim upon which relief could be granted and that he had also failed to
exhaust all available administrative remedies. The district court adopted the
report and recommendation, and dismissed M r. Phillips-Bey’s complaint without
prejudice under 42 U.S.C. § 1997e(a). This appeal followed.
II. D ISC USSIO N
W e review de novo a district court’s dismissal of a complaint for failure to
state a claim. M artinez v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005). W e
also 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 the allegations in the complaint as true, and make all
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reasonable factual inferences in M r. Phillips-Bey’s favor. M artinez, 430 F.3d at
1304. Additionally, we must construe his arguments liberally because he is pro
se. Haines v. Kerner, 404 U.S. 519, 520 (1972).
Although the magistrate judge and district court examined whether M r.
Phillips-B ey had stated a claim for relief, as well as whether he had properly
exhausted his administrative remedies, “we may affirm on any grounds supported
by the record.” Duncan v. Gunter, 15 F.3d 989, 991 (10th Cir. 1994). The Prison
Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought with
respect to prison conditions under section 1983 of this title . . . until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
The prisoner must exhaust all administrative remedies available even if
administrative procedures “would appear to be futile at providing the kind of
remedy sought.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002).
W e agree with the magistrate judge and the district court that M r. Phillips-
Bey failed to exhaust his administrative remedies with respect to at least one of
his claims. The Oklahoma Department of Corrections (“ODOC”) has outlined a
multi-step process inmates must use to exhaust their administrative remedies. See
ODOC Policy OP-090124. A prisoner must first file a Request to Staff within
seven days of the incident. Id. OP-090124(IV ). If the prison’s response is
unsatisfactory or if the prisoner does not receive a response within 30 days, the
prisoner must file a Grievance Report Form. Id. OP-090124 (IV)(B)(5); OP-
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090124(V ).
W ith respect to M r. Phillips-B ey’s first claim, that prison officials
prevented him from exercising his First Amendment rights, the record contains
numerous Requests to Staff alleging that various officials were denying him the
ability to practice his religion. See, e.g., Rec. doc. 31, Attach. B, at 5 (Request to
Staff, dated Dec. 17, 2003). However, M r. Phillips-Bey never submitted a
G rievance R eport Form on this issue, as required by the ODOC policies. “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, 304 F.3d at 1032.
M r. Phillips-Bey contends on appeal that the district court erred by
dismissing the entirety of his complaint, rather than deciding “to grant [the
defendants’ motion to dismiss] in part and deny [it] in part,” Aplt’s Br. at 3. H e
maintains that he did, in fact, exhaust his administrative remedies with respect to
his due process claims.
M r. Phillips-Bey is simply mistaken about the law in this circuit: when a
prisoner chooses to bring multiple claims regarding prison conditions, Ҥ
1997e(a) requires that all available prison grievance remedies must be exhausted
as to all of the claim s. . . . [T]he presence of unexhausted claims . . . require[s]
the district court to dismiss [an] action in its entirety without prejudice.” Ross v.
County of Bernalillo, 365 F.3d 1181, 1188-89 (10th Cir. 2004) (internal quotation
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marks omitted) (emphasis added); see also Patel, 415 F.3d at 1109 (“‘W hen
multiple prison condition claims have been joined . . . § 1997e(a) requires that all
available prison grievance remedies must be exhausted as to all of the claims.’”
(quoting Graves v. Norris, 218 F.3d 884, 885 (8th Cir. 2000) (per curiam))).
III. C ON CLU SIO N
Because M r. Phillips-B ey failed to exhaust his administrative remedies with
respect to at least one of his claims, we AFFIRM the district court’s dismissal of
the entirety of his complaint without prejudice. W e grant M r. Phillips-Bey’s
motion to pay his filing fee in partial payments and remind him of this continuing
obligation.
Entered for the Court
Robert H. Henry
Circuit Judge
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