Hoover v. West , 93 F. App'x 177 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 19 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
STEPHEN JOE HOOVER,
Plaintiff - Appellant,
v.
No. 03-7106
KELLY WEST; EARL MARKLAND; (D.C. No. CIV-02-418-S)
ROYCE MELTON; J. D. DAVIS; (E.D. Okla.)
GARY GIBSON; RANDALL
WORKMAN; FRANK KEATING,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before EBEL, MURPHY, and McCONNELL, Circuit Judges.
Stephen J. Hoover (“Plaintiff”), a former Oklahoma prisoner appearing pro
se and in forma pauperis, 1 filed this action pursuant to 42 U.S.C. § 1983 while he
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
1
Plaintiff was released from custody prior to filing his notice of appeal, and
thus the filing fee provisions of the Prison Litigation Reform Act do not apply to
this appeal. See 28 U.S.C. § 1915(a), (b), (h); Whitney v. New Mexico, 113 F.3d
(continued...)
was incarcerated. The district court granted Defendants’ motion to dismiss for
failure to exhaust administrative remedies under 42 U.S.C. § 1997(e)(a), and
Plaintiff now appeals. For the following reasons, we AFFIRM the district court’s
order.
BACKGROUND
Plaintiff alleged that on August 1, 2000, Sergeant Kelly West, supervised
and assisted by other prison officials, assaulted and battered Plaintiff while he
was wearing full restraints during his cellmate’s cell abstraction. The next day,
Plaintiff submitted a “Request to Staff” to Randall Workman, a Deputy Warden,
who denied it on August 16, 2000. Plaintiff then filed a grievance to the Warden
on that same day. On August 21, 2000, the Warden’s office returned the
grievance to Plaintiff unanswered on the ground that Plaintiff had previously filed
a grievance regarding the same issue. Defendants have since conceded that the
Warden’s office made a mistake regarding this rationale, as no other previous
grievance was filed regarding this incident.
Plaintiff then appealed the issue to the Administrative Review Authority
(ARA), which returned his grievance unanswered on August 31, 2000 because he
(...continued)
1
1170, 1171 n.1 (10th Cir. 1997). Based on our review of Plaintiff’s financial
declarations, we grant his motion to proceed in forma pauperis on appeal. See 28
U.S.C. § 1915(a)(1).
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had improperly attached additional pages to the grievance and because he had not
received a response from the facility head (the Warden). The Administrative
Review Authority gave Plaintiff ten additional days to correct the deficiencies and
properly submit the grievance. Instead of attempting to cure during this time
period, 2 Plaintiff filed a lawsuit in the Eastern District of Oklahoma pursuant to
42 U.S.C. § 1983, alleging cruel and unusual punishment in violation of the
Eighth Amendment and denial of due process in violation of the Fourteenth
Amendment.
Defendants moved to dismiss under Rule 12(b)(6) on the ground that
Plaintiff had failed to exhaust his administrative remedies as required by 42
U.S.C. § 1997(e)(a). The district court granted the motion and Plaintiff now
appeals.
DISCUSSION
We exercise jurisdiction over this appeal from the district court’s final
order pursuant to 28 U.S.C. § 1291. We review de novo the district court’s
dismissal for failure to exhaust administrative remedies under 42 U.S.C. §
1997(e)(a). Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002).
2
Plaintiff did attempt to refile his grievance to the Administrative Review
Authority (ARA) on June 21, 2002. However, the ARA returned it for
untimeliness because it was filed almost two years after he had been given ten
days to correct the above deficiencies.
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A. The Exhaustion Requirement of the Prison Litigation Reform
Act (PLRA)
The general rule is that plaintiffs need not exhaust administrative remedies
before filing a § 1983 suit. Porter v. Nussle, 534 U.S. 516, 523 (2002).
However, as part of the 1996 Prison Litigation Reform Act (PLRA), Congress
added an exhaustion requirement for prisoners’ suits regarding prison conditions.
42 U.S.C. § 1997(e)(a). The provision, entitled “Suits by Prisoners,” provides:
No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.
42 U.S.C. § 1997(e)(a). The Supreme Court has held that this exhaustion
requirement for suits regarding “prison conditions” applies to “all inmate suits
about prison life, whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some other wrong.” 3 Porter,
534 U.S. at 531.
“Although section 1997(e)(a) mandates the exhaustion of administrative
remedies, a plaintiff’s failure to fulfill a statutory requirement does not
necessarily deprive the federal courts of subject matter jurisdiction.” Chelette v.
3
The government asserts, without citation to the record or reference to
dates, that Plaintiff was still incarcerated at the date of filing his complaint.
Plaintiff does not seem to contest this. Therefore, it appears that the PLRA
exhaustion requirement applies.
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Harris, 229 F.3d 684, 687 (8th Cir. 2000). The Supreme Court has held that the
language of the exhaustion requirement must contain “‘sweeping and direct’
language indicating that there is no federal jurisdiction prior to exhaustion, or else
the exhaustion requirement is treated as an element of the underlying claim.” Id.(quoting Weinberger v. Salfi, 422 U.S. 749, 757 (1975)). Because § 1997(e)(a)
does not contain this sort of “sweeping and direct” language, every circuit court
that has considered the issue has found that the PLRA exhaustion requirement is
not jurisdictional. Id. (collecting cases); see also Ali v. District of Columbia, 278
F.3d 1, 5-6 (D.C. Cir. 2002) (same). We recently joined our sister circuits in
finding that the PLRA exhaustion requirement, although mandatory, is not a
prerequisite to our jurisdiction. 4 Steele v. Federal Bureau of Prisons, __ F.3d __,
2003 WL 23019855, *3 (10th Cir. 2003).
An inmate must not only begin the administrative grievance process in
order to meet the exhaustion requirement, but must also complete it in compliance
with administrative rules. Jernigan, 304 F.3d at 1032. Even if the administrative
process does not provide the particular relief sought by the plaintiff, he or she is
still required to exhaust all administrative procedures that are available. Booth v.
4
Therefore, Plaintiff is correct when he argues that § 1997(e)(a) is not
jurisdictional. However, this argument does not get him far as the district court
would still have been required to dismiss his complaint had he failed to exhaust.
Section 1997(e)(a) is mandatory and requires dismissal of any case in which an
available administrative remedy has not been exhausted.
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Churner, 532 U.S. 731, 741 (2001). Similarly, the plaintiff is required to exhaust
all available procedures offered by the prison even if doing so appears “futile.”
Jernigan, 304 F.3d at 1032; see also Giano v. Goord, 250 F.3d 146, 150-51 (2d
Cir. 2001) (“[T]he alleged ineffectiveness of the administrative remedies that are
available does not absolve a prisoner of his obligation to exhaust such
remedies[.]”); Perez v. Wisconsin Dep’t of Corrections, 182 F.3d 532, 536-37
(7th Cir. 1999) (finding that the PLRA exhaustion requirement has no “futility
exception,” and stating that “[n]o one can know whether administrative requests
will be futile; the only way to find out is to try”) (emphasis in original).
B. Defendants’ administrative procedure provided a remedy that
triggered the exhaustion requirement of § 1997(e)(a).
Plaintiff first argues that the Oklahoma Department of Corrections
(“DOC”) provides no remedy for his allegations. According to Plaintiff, this is
because the grievance process cannot be used to discipline staff and because the
Oklahoma Governmental Tort Claims Act does not provide a cause of action for
“individual non-official acts.” (Aplt. Br. at 10-11.)
However, the Supreme Court has held that as long as the administrative
procedures have “authority to take some action in response to a complaint,” that is
enough of a remedy to trigger the exhaustion requirement. Booth, 532 U.S. at 736(emphasis added). For example, although the procedures may not provide
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monetary relief, they might provide for transfer to another facility or at least a
hearing on grievances. See Larkin v. Galloway, 266 F.3d 718, 723 (7th Cir.
2001). Plaintiff does not argue that transfers or hearings were not available
through this process, and it is not sufficient for him to simply point to the lack of
either a tort cause of action or an inmate-initiated disciplinary action against staff.
The administrative procedures provided some remedy and Plaintiff is obligated to
exhaust those procedures even if the available remedy is not one of his choosing.
See Booth, 532 U.S. at 741.
C. Plaintiff did not exhaust all “available” administrative
procedures, and Defendants’ actions did not render these
procedures “unavailable.”
Plaintiff next argues that he exhausted all administrative procedures that
were available to him and that any further procedures were made “unavailable” by
Defendants’ actions. He is frustrated by the fact that the Warden initially erred in
declining to respond to his grievance based on the misconception that a previous
grievance had been filed on the same issue. 5 Yet, when Plaintiff attempted to
appeal, the Administrative Review Authority (ARA) refused to respond in part
because the Warden had not yet responded. It is true that Plaintiff seems to have
Defendants now concede that the Warden erred in this initial refusal to
5
respond to Plaintiff’s grievance, as there existed no previous grievances on this
August 1, 2000 incident.
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been caught in a catch-22. However, the ARA gave him ten days to cure this
deficiency, and instead of even attempting to obtain a response from the Warden
or explain the mistake to the ARA within that time period, he filed the instant suit
in district court.
Plaintiff is correct that § 1997(e)(a) only requires him to exhaust
administrative procedures that are made “available” to him. Courts “refuse to
interpret the PLRA so narrowly as to permit prison officials to exploit the
exhaustion requirement through indefinite delay in responding to grievances.”
See Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002) (quotation omitted).
Instead, we examine the plain meaning of the term “available” in § 1997(e)(a) and
find that a prisoner is only required to exhaust those procedures that he or she is
reasonably capable of exhausting. See Underwood v. Wilson, 151 F.3d 292, 295
(5th Cir. 1998). For example, “[T]he failure [of prison officials] to respond to a
grievance within the time limits contained in the grievance policy renders an
administrative remedy unavailable.” Jernigan, 304 F.3d at 1032. Similarly, a
prisoner lacks “available” remedies where prison officials deny him or her the
necessary grievance forms. Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003).
Where prison officials prevent or thwart a prisoner from utilizing an
administrative remedy, they have rendered that remedy “unavailable” and a court
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will deem that procedure “exhausted.” See Lyon v. Vande Krol, 305 F.3d 806,
808 (8th Cir. 2002); Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001).
However, in the instant case, Plaintiff was given ten days to cure the
deficiency, yet failed to make any such attempt. This is similar to the situation
we faced in Jernigan, 304 F.3d at 1032-33, where we held that the plaintiff had
not exhausted his remedies where he failed to cure a deficiency in his appeal
related to obtaining a response from the head prison official, even though it may
have been the prison official’s fault for misplacing his grievance. We noted that
the plaintiff “was given ten days to cure the deficiency in question which no
doubt would have involved informing prison officials of the lost or misfiled
grievance.” Id. at 1032. We stated that the plaintiff could not “successfully
argue that he had exhausted his administrative remedies by, in essence, failing to
employ them[.]” Id. at 1033. There, as here, the grievance policy provided a time
frame for prison officials’ responses, after which the plaintiff could appeal with
evidence of attempts to obtain a response. Id. Plaintiff has not shown us any
reason why he could not have brought the mistake regarding the previous
grievance to the Warden’s attention (or the ARA’s) within the 10-day time period.
Because he did not even try to cure this deficiency, we affirm the district court’s
dismissal for lack of exhaustion. See id.-9-
D. Defendants are not equitably estopped from moving to dismiss
for failure to exhaust.
Finally, Plaintiff argues that because it was Defendants’ mistake that
caused him to fall short of fully exhausting the administrative procedures, they
should be equitably estopped from moving to dismiss based on § 1997(e)(a). We
disagree.
“The Fifth Circuit is the only circuit to hold that equitable estoppel can
apply to the PLRA exhaustion requirement.” Lewis, 300 F.3d at 834 (citing
Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998)). This holding is
“persuasive because non-jurisdictional prerequisites to suit in federal court are
typically subject to equitable estoppel.” Id. (citing Zipes v. Trans World Airlines,
Inc. 455 U.S. 385, 393 (1982)). However, the Seventh and Tenth Circuits have so
far declined to decide whether equitable estoppel applies because their cases have
fallen short of meeting the elements of equitable estoppel. See id.; Jernigan, 304
F.3d at 1033.
To establish equitable estoppel, the party claiming estoppel must show: (1)
a misrepresentation by the opposing party; (2) reasonable reliance on that
misrepresentation; and (3) detriment. Emery Mining Corp. v. Secretary of Labor,
744 F.2d 1411, 1417 (10th Cir. 1984). It is also well-settled that the
“Government may not be estopped on the same terms as any other litigant,” and
the burden on the party seeking estoppel against the government is heavier.
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Heckler v. Cmmty. Health Servs. of Crawford County, 467 U.S. 51, 60 (1984).
“When asserting equitable estoppel against the government, one must also prove
affirmative misconduct.” Lewis, 300 F.3d at 834.
In the instant case, Plaintiff merely argues that the prison officials have
“misrepresented” that they have a grievance procedure and that they will answer
grievances. (Aplt. Br. at 18.) However, he has pointed to no statement made to
him regarding his grievance or the deadlines which could constitute a
misrepresentation. Nor does he show that he relied on any of Defendants’
statements to him. In fact, Plaintiff was the one who knew that Defendants’
statements regarding his previous grievance were mistaken. Just like the plaintiff
in Jernigan, Plaintiff cannot show detrimental reliance on prison officials. See
Jernigan, 304 F.3d at 1033 (stating that plaintiff could not show detrimental
reliance, “having been told that his grievance had been lost or misfiled and having
been given an opportunity to cure”). Because Plaintiff fails to show either a
misrepresentation or detrimental reliance, he has clearly failed to state a claim
regarding equitable estoppel. Thus, we need not reach the issue of whether
equitable estoppel applies to the PLRA exhaustion requirement.
CONCLUSION
For the foregoing reasons, we AFFIRM the order of the district court
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dismissing Plaintiff’s § 1983 claim for failure to exhaust under § 1997(e)(a).
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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