Greer v. Dowling ( 2020 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
January 22, 2020
UNITED STATES COURT OF APPEALS
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
____________________________________
TRAVIS LEMARR GREER,
Plaintiff - Appellant,
v. No. 18-6067
JANET DOWLING; JAY
DRAWBRIDGE; KELLI CURRY;
FELICIA HARRIS; CATHY
MILBERS; MIKE ROGERS; DAN
GROGAN; MARK KNUTSON,
Defendants - Appellees.
_________________________________
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:14-CV-00708-M)
_________________________________
Brett R. Lilly, Brett R. Lilly, LLC, Wheat Ridge, Colorado, on behalf of
the Plaintiff-Appellant.
Lexie P. Norwood, Assistant Attorney General (Stefanie E. Lawson,
Assistant Attorney General, with her on the briefs), Oklahoma City,
Oklahoma, on behalf of the Defendants-Appellees.
_________________________________
Before HOLMES, KELLY, and BACHARACH, Circuit Judges.
_________________________________
BACHARACH, Circuit Judge.
________________________________
This appeal involves prison officials’ obligations to accommodate
inmates’ religious beliefs by providing kosher foods. These obligations
were triggered when Mr. Travis Greer, a Messianic Jew housed in an
Oklahoma prison, informed prison officials that he kept kosher. At his
request, the Oklahoma Department of Corrections agreed to provide Mr.
Greer with kosher foods. In exchange, Mr. Greer agreed not to consume
any non-kosher foods.
Prison officials concluded that Mr. Greer had violated this agreement
by consuming crackers and iced tea, 1 which they considered non-kosher. As
punishment, authorities denied Mr. Greer kosher foods for 120 days. Mr.
Greer complained about this punishment. Soon afterward, officials saw Mr.
Greer using a computer. Treating the computer use as an infraction,
officials penalized Mr. Greer with a disciplinary sanction. The disciplinary
sanction led officials to transfer Mr. Greer out of a preferred housing unit.
Mr. Greer sued based on the suspension of kosher foods, the
disciplinary sanction for using the computer, and the housing transfer. The
1
Some disagreement exists over whether Mr. Greer had eaten other
non-kosher foods. A clergyman, Mr. Jay Drawbridge, originally claimed
that he had seen video of Mr. Greer eating an entire non-kosher meal. In
response, Mr. Greer submitted evidence that he had prepared a buffet plate
for another person but had not eaten anything from this plate. The
defendants do not challenge Mr. Greer’s evidence, so the only items in
dispute are the crackers and iced tea.
2
district court granted summary judgment to the defendants on some causes
of action based on Mr. Greer’s failure to exhaust administrative remedies
and dismissed other causes of action for failure to state a claim. The
district court then granted summary judgment to the defendants on the
remaining causes of action based on qualified immunity and the
unavailability of declaratory or injunctive relief.
We reverse in part and affirm in part. In its first grant of summary
judgment, the district court correctly held that Mr. Greer had exhausted
administrative remedies through a grievance addressing the suspension of
his kosher foods. But the district court interpreted this grievance too
narrowly, viewing it as pertinent only to Mr. Greer’s causes of action
involving cruel and unusual punishment, conspiracy, retaliation, and
deprivation of due process. In our view, however, this grievance also
encompassed Mr. Greer’s causes of action based on the Religious Land Use
and Institutionalized Persons Act (RLUIPA) and the First Amendment. As
a result, the district court should not have granted summary judgment for a
failure to exhaust these two causes of action.
Mr. Greer also asks us to review the district court’s second grant of
summary judgment. We decline to do so because Mr. Greer waived
appellate review of this ruling. To obtain appellate review of a report and
recommendation, a party must object. Because Mr. Greer did not object, we
decline to review the district court’s second summary-judgment ruling.
3
I. Mr. Greer sues after unsuccessfully seeking administrative relief.
Mr. Greer filed grievances alleging that prison authorities had
improperly suspended his kosher foods and transferred him out of a
preferred housing unit. Mr. Greer pursued these grievances to varying
degrees through the administrative process.
Dissatisfied with the results, Mr. Greer sued. He asserted five causes
of action, claiming that
1. authorities had improperly suspended his kosher foods in
violation of RLUIPA and the First, Eighth, and Fourteenth
Amendments,
2. the state corrections department had violated the First
Amendment by enforcing an agreement authorizing suspension
of kosher foods to sanction Mr. Greer for violating his
agreement with prison officials,
3. the defendants’ suspension of Mr. Greer’s kosher foods and the
housing transfer had been retaliatory and motivated by
financial gain and religious discrimination,
4. the defendants had violated state law by obstructing Mr.
Greer’s efforts to submit grievances, and
5. the housing transfer had resulted from a denial of due process
and equal protection.
The magistrate judge issued two pertinent report and
recommendations. 2 In the first report and recommendation, the magistrate
2
The magistrate judge also issued four other report and
recommendations that are immaterial to this appeal.
4
judge recommended summary judgment for the defendants based on Mr.
Greer’s failure to exhaust his claims involving
 violation of RLUIPA and the First Amendment and
 denial of due process and equal protection.
The district judge adopted the report and recommendation over Mr. Greer’s
objections.
In the second report and recommendation, the magistrate judge
recommended summary judgment for the defendants on all remaining
claims based on qualified immunity and the unavailability of declaratory or
injunctive relief. Though Mr. Greer received four extensions of time to
object, 3 he never objected. In the absence of an objection, the district judge
ultimately adopted the second report and recommendation.
II. Mr. Greer did not fail to exhaust his RLUIPA and First
Amendment claims.
A prisoner can sue over prison conditions only after exhausting
administrative proceedings. 42 U.S.C. § 1997e(a). Exhaustion requires that
a prisoner comply with available administrative procedures. Fields v. Okla.
State Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007). To exhaust,
3
The four extensions were given in Documents 175, 182, 185, and
189. The defendants also refer to a fifth extension (Document 178). This
extension is not in our record, but is described in the docket sheet as an
extension of time to object to a separate report and recommendation
involving the denial of a preliminary injunction.
5
however, an inmate need not pursue administrative channels that have
become unavailable. Ross v. Blake, 136 S. Ct. 1850, 1859–60 (2016).
For Oklahoma inmates like Mr. Greer, the relevant administrative
procedure comprised four steps:
1. informally raising the matter with staff,
2. submitting a request to staff,
3. filing a grievance, and
4. appealing to the Administrative Review Authority.
Little v. Jones, 607 F.3d 1245, 1247, 1249 (10th Cir. 2010).
Mr. Greer filed multiple grievances without completing the
administrative process on any of them. But the district court ruled that Mr.
Greer hadn’t needed to complete the administrative process on Grievance
14-55 because further remedies had become unavailable. Because the
defendants don’t challenge that ruling, the only issue here is whether
Grievance 14-55 fairly encompassed Mr. Greer’s claims involving RLUIPA
and the First Amendment. The district court implicitly answered “no,”
viewing these claims as covered only by another grievance (Grievance 14-
67). In our view, however, these claims also fall under Grievance 14-55.
To determine the scope of Grievance 14-55, we consider its
relationship to the causes of action in the complaint. See Kikumura v.
Osagie, 461 F.3d 1269, 1282 (10th Cir. 2006) (“A showing of exhaustion
. . . [is] dependent upon insight into the administrative claim and its
6
relationship with the federal suit.”) (quoting Steele v. Fed. Bureau of
Prisons, 355 F.3d 1204, 1210 (10th Cir. 2003)), overruled on other
grounds by Robbins v. Okla. ex rel. Dep’t of Human Servs., 519 F.3d 1242
(10th Cir. 2008). Because Mr. Greer was unrepresented, we liberally
construe Grievance 14-55. See Bell v. Konteh, 450 F.3d 651, 654 (6th Cir.
2006) (interpreting a pro se inmate’s grievances under a relaxed standard
and noting the consistency of this standard with the need to liberally
construe pro se inmates’ court filings); see also Buechel v. United States,
746 F.3d 753, 760 (7th Cir. 2014) (“At each stage of the federal tort claim
process, pro se administrative complaint forms are ‘entitled to a generous
construction.’” (quoting Palay v. United States, 349 F.3d 418, 425–26 (7th
Cir. 2003))); Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996)
(“In cases where, as here, the employee acts pro se, the administrative
charge is liberally construed in order to afford the complainant the benefit
of any reasonable doubt.”) (citations omitted).
Liberally construed, Grievance 14-55 encompasses the RLUIPA and
First Amendment claims. In this grievance, Mr. Greer alleged that “[o]n
March 26, 2014, evening meal, [he] [had been] removed from [his]
religious (kosher) diet, in direct violation of [his] constitutional rights.” R.
vol. I, at 234. This allegation is essentially repeated in Mr. Greer’s
eventual suit, where he claimed that the suspension of his kosher foods
violated his constitutional rights. Though Mr. Greer’s grievance referred
7
only to constitutional violations, liberal construction of this grievance
would also include the RLUIPA claim. See Hammons v. Saffle, 348 F.3d
1250, 1258 (10th Cir. 2003) (liberally construing a claim involving
religious freedom to include a RLUIPA claim). Indeed, the district court
acknowledged that Grievance 14-55 had “sufficient[ly] alerted prison
officials as to the nature of the alleged wrong” involving the suspension of
Mr. Greer’s kosher foods. R. vol. II, at 149.
Even so, the district court erroneously interpreted Grievance 14-55 as
limited to the claims involving cruel and unusual punishment, conspiracy,
retaliation, and deprivation of due process. With this narrow interpretation
of Grievance 14-55, the court granted summary judgment to the defendants
on the RLUIPA and First Amendment claims based on Mr. Greer’s failure
to fully pursue another grievance (Grievance 14-67). But Grievance 14-55
referred more broadly to the violation of Mr. Greer’s constitutional rights
through the denial of kosher foods.
For Grievance 14-55, Mr. Greer did not properly complete the
administrative process. But, as the district court acknowledged, prison
authorities had prevented Mr. Greer from taking further administrative
steps. As a result, the district court could not reject the RLUIPA and First
Amendment claims based on a failure to exhaust administrative remedies. 4
4
The district court recognized that Grievance 14-55 had fairly
encompassed part or all of four other claims involving suspension of
8
So once Mr. Greer exhausted available administrative remedies on his
RLUIPA and First Amendment claims through Grievance 14-55, he didn’t
need to pursue a new grievance on those claims. The district court should
have thus rejected the defendants’ arguments for summary judgment on the
First Amendment and RLUIPA claims.
On appeal, the defendants urge affirmance of the summary-judgment
award on these claims based on the alternate ground of qualified immunity.
But qualified immunity is an affirmative defense that defendants must
invoke in district court. Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982).
And the defendants did not urge qualified immunity when seeking summary
judgment on the RLUIPA and First Amendment claims. Defense counsel
thus conceded at oral argument that we cannot affirm on the alternative
ground of qualified immunity. See Mansourian v. Regents of Univ. of Cal.,
602 F.3d 957, 974 (9th Cir. 2010) (refusing to affirm a dismissal on the
alternative ground of qualified immunity because the defendants had not
raised qualified immunity in their dispositive motions); Robinson v.
Pezzat, 818 F.3d 1, 11 (D.C. Cir. 2016) (refusing to affirm on qualified
immunity based on a failure to show the violation of a clearly established
kosher foods: (1) cruel and unusual punishment, (2) conspiracy,
(3) retaliation, and (4) deprivation of due process. These parts of the
claims were terminated on other grounds, which Mr. Greer failed to
challenge on appeal or otherwise waived. See Part III, below.
9
right because the defendants had not argued that they “were entitled to
qualified immunity on clearly established law grounds”).
III. Mr. Greer waived his right to appellate review of the rulings
proposed in the second report and recommendation.
Mr. Greer also appeals the second entry of summary judgment for the
defendants on the claims involving
1. the housing transfer as retaliation for filing grievances and
2. the suspension of kosher foods as retaliation for protected
conduct and in violation of Mr. Greer’s right to due process.
On these claims, the magistrate judge entered a second report and
recommendation to award summary judgment to the defendants based on
qualified immunity. Mr. Greer didn’t object to this second report and
recommendation.
We ordinarily decline to consider an appellant’s legal arguments not
raised in an objection to a report and recommendation. Morales v. I.N.S.,
418 F.3d 1116, 1119 (10th Cir. 2005). But Mr. Greer pitches three reasons
for us to consider his appellate challenge:
1. he objected in a document entitled “Judicial Notice,”
2. objections to the first report and recommendation were
incorporated into the second report and recommendation, and
3. the interests of justice require review.
Mr. Greer argues that the so-called “judicial notice” constituted an
objection to the second report and recommendation. This document stated
10
that Mr. Greer “has been and still is being obstructed and thwarted by
several ODOC officials.” Suppl. R. at 53. Throughout this case, Mr. Greer
has submitted various motions alleging interference with his access to
legal materials. But even if he has suffered some interference with his
legal materials, the “judicial notice” did not address the substance of the
second report and recommendation.
Mr. Greer also maintains that we should regard his objection to the
first report and recommendation as an objection to the second report and
recommendation. For this argument, Mr. Greer insists that the second
report and recommendation incorporates arguments in the first report and
recommendation, so his objections to the first report and recommendation
should also be incorporated.
We disagree. Mr. Greer timely objected to the first report and
recommendation on grounds that also relate to the second report and
recommendation. But Mr. Greer did not renew these objections in response
to the second report and recommendation, so the previous objection cannot
preserve appellate review.
Finally, Mr. Greer invokes an exception to the objection requirement
that arises when “the ‘interests of justice’ require review.” Morales-
Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005) (quoting Moore
v. United States, 950 F.2d 656, 659 (10th Cir. 1991)). For this exception,
the court considers “a pro se litigant’s effort to comply, the force and
11
plausibility of the explanation for his failure to comply, and the
importance of the issues raised.” Morales-Fernandez, 418 F.3d at 1119–20.
But Mr. Greer has not satisfied the interests-of-justice exception. Mr.
Greer received four extensions of time, and he had 265 days to object to
the second report and recommendation before it was adopted. During this
265-day period, Mr. Greer filed two objections to the denial of his requests
for injunctions. These objections reflect Mr. Greer’s ability to access legal
materials and to file documents. Despite this ability and the availability of
265 days, Mr. Greer never objected to the second report and
recommendation. We thus conclude that Mr. Greer waived appellate review
of the rulings proposed in the second report and recommendation.
IV. Conclusion
We affirm the district court’s conclusion that Mr. Greer exhausted
administrative remedies through Grievance 14-55. But the district court
interpreted this grievance too narrowly. Because the grievance
encompassed Mr. Greer’s First Amendment and RLUIPA claims, we
reverse and remand for the district court to consider these claims on the
merits. 5 We otherwise affirm because Mr. Greer waived his appellate
challenges to the rulings proposed in the second report and
recommendation.
5
On remand, the district court should also reconsider whether to
exercise supplemental jurisdiction over Mr. Greer’s state-law claim.
12