McGoldrick v. Werholtz , 185 F. App'x 741 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 22, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
B RIA N MC G O LD RIC K; TO D
PA BST; M A RC US WA SH IN G TON;
JEFFR EY J. SPER RY ,
Plaintiffs-Appellants,
v. No. 05-3438
(D.C. No. 04-CV-3125-CM )
ROGER W ERHOLTZ, Secretary, (D . Kan.)
Kansas Department of Corrections,
in his individual and official capacity,
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before H E N RY, BR ISC OE, and M U RPH Y, Circuit Judges.
Plaintiffs Brian M cGoldrick, Tod Pabst, M arcus W ashington, and Jeffrey
Sperry are state prisoners at the Lansing Correctional Facility in Lansing, Kansas.
*
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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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 10th Cir. R. 36.3.
Defendant Roger W erholtz is the Secretary of Corrections for the Kansas
Department of Corrections. Appearing pro se, plaintiffs appeal from the order
and the related judgment entered by the district court dismissing without
prejudice all of the claims asserted in their complaint under 42 U.S.C. § 1983.
Plaintiffs also appeal from the district court’s order denying their motion to alter
or amend judgment under Fed. R. Civ. P. 59(e). W e reverse in part and affirm in
part.
In their § 1983 complaint, plaintiffs asserted two claims against defendant.
First, plaintiffs alleged that defendant has violated their rights under the First and
Fourteenth Amendments by enacting a regulation that prohibits them from
possessing sexually explicit materials. Second, plaintiffs alleged that defendant
has violated their Fourth and Fourteenth Amendment rights, and committed
certain state-law torts, by requiring that ten percent of all monies they receive be
placed in mandatory prison savings accounts. Plaintiffs requested a declaratory
judgment, injunctive relief, and compensatory and punitive damages. Plaintiffs
also requested that the district court certify their case as a class action under
Fed. R. Civ. P. 23. Although plaintiffs did not define the class in their complaint,
they assert in their appellate brief that they sought to certify a class consisting of
“all Kansas inmates.” Aplts. Br. at 3.
In this appeal, we are presented with issues concerning the requirement
under 42 U.S.C. § 1997e(a) that a prisoner must exhaust his prison administrative
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remedies before seeking relief under § 1983. As set forth in plaintiffs’ brief, it is
undisputed that plaintiff Sperry has exhausted his prison administrative remedies
with regard to all of the claims asserted in plaintiffs’ complaint. Aplts. Br. at 2-3.
It is also undisputed, however, that plaintiffs M cGoldrick, Pabst, and W ashington
have exhausted their prison administrative remedies only with regard to the claim
challenging the ban on sexually explicit materials. Id.
Applying 42 U.S.C. § 1997e(a) and this court’s “total exhaustion rule,” the
district court granted defendant’s motion for summary judgment and dismissed all
of the claims asserted in plaintiffs’ complaint without prejudice. The court’s
dismissal was based on the fact that plaintiffs’ complaint contained both
exhausted and unexhausted claims, R., Doc. 37 at 5 (stating that “plaintiffs have
failed to exhaust all available administrative remedies with respect to some of the
claims in their complaint”), and the court’s reasoning was based on this court’s
decision in Ross v. County of Bernalillo, 365 F.3d 1181, 1190 (10th Cir. 2004)
(holding that § 1997e(a) “requires inmates to exhaust fully all of their claims
before filing in federal court. If a prisoner does submit a complaint containing
one or more unexhausted claims, the district court ordinarily must dismiss the
entire action without prejudice.”). The court also relied on this same reasoning to
deny plaintiffs’ Rule 59(e) motion. R., Doc. 43 at 3-4.
W e are governed by a mixed standard of review in this appeal. On the one
hand, “[o]ur review of a dismissal under [§ 1997e(a)] for failure to exhaust
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administrative remedies is de novo.” Ross, 365 F.3d at 1185. By contrast, “[t]his
court reviews the district court’s ruling on [plaintiffs’] Rule 59(e) motion for
abuse of discretion.” Loughridge v. Chiles Power Supply Co., 431 F.3d 1268,
1275 (10th Cir. 2005).
The district court’s summary judgment order raises tw o issues. To begin
with, the court did not address plaintiffs’ request that a class of prisoners be
certified under Fed. R. Civ. P. 23, and the court thus did not consider whether the
request for certification of a class action had any effect on the exhaustion issues.
In addition, the court did not acknowledge or address the fact that Ross involved a
single prisoner-plaintiff who had pled both exhausted and unexhausted claims, as
opposed to the situation here where there are multiple plaintiffs. Ross, 365 F.3d
at 1182.
In their brief, plaintiffs cite cases standing for the proposition that the
prisoner exhaustion requirement is satisfied in a class action where a single
member of the class has exhausted his or her administrative remedies with respect
to each claim raised by the class, and this is known as “vicarious exhaustion.”
Aplts. Br. at 3 (citing Chandler v. Crosby, 379 F.3d 1278 (11th Cir. 2004);
Lewis v. Washington, 265 F. Supp. 2d 939 (N.D. Ill. 2003); Jones v. Berge,
172 F. Supp. 2d 1128 (W .D. W is. 2001)). Although we agree with plaintiffs that
the vicarious exhaustion rule might save their claims if the district court had
certified a class of prisoners (assuming, without deciding, that this circuit would
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follow the vicarious exhaustion rule), the district court did not certify a class
here. M oreover, because plaintiffs are pro se, the district court would have
abused its discretion if it had certified a class action. See Fymbo v. State Farm
Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000) (holding that this court
reviews the issue of whether representative parties are adequate class
representatives under Fed. R. Civ. P. 23(a)(4) for abuse of discretion, and that
class representatives cannot appear pro se); see also Oxendine v. W illiams,
509 F.2d 1405, 1407 (4th Cir. 1975) (holding that pro se prisoners are not
adequate representatives for a class); 7A Charles Alan W right, Arthur R. M iller
& M ary Kay Kane, Federal Practice and Procedure § 1769.1 at 450 & n.13
(3d ed. 2005) (stating rule that “class representatives cannot appear pro se,”
and citing supporting case law ).
That said, we nonetheless conclude that the district court erred in
dismissing plaintiff Sperry’s claims. As noted above, it is undisputed that
plaintiff Sperry exhausted all of the claims asserted in plaintiffs’ complaint, and
we see no reason to penalize him for the failure of his co-plaintiffs to exhaust all
of their claims. As a result, we hold that the district court should have applied the
total exhaustion rule to each plaintiff separately, and that the rule therefore does
not bar plaintiff Sperry’s claims.
Accordingly, we AFFIRM the order and the related judgment entered by the
district court dismissing all of the claims of plaintiffs M cGoldrick, Pabst, and
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W ashington without prejudice. Because the district court did not abuse its
discretion, we also AFFIRM the denial of relief under Fed. R. Civ. P. 59(e) with
regard to plaintiffs M cGoldrick, Pabst, and W ashington. W e REVERSE and
VACATE the portions of the order and the related judgment entered by the
district court dismissing the claims of plaintiff Sperry, and the latter claims are
REM ANDED to the district court for further proceedings.
Entered for the Court
M ary Beck Briscoe
Circuit Judge
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