Fratis v. Owens , 168 F. App'x 865 ( 2006 )


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  •                                                                            F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    February 24, 2006
    FOR THE TENTH CIRCUIT                      Elisabeth A. Shumaker
    Clerk of Court
    LYNDA M. FRATIS,
    Plaintiff-Appellant,
    v.                                             Nos. 05-1054 and 05-1135
    (D.C. No. 04-Z-2579)
    BILL OWENS; JOE ORTIZ; STEVE                            (D. Colo.)
    ROSSI; STEVE HAGER; CHERRIE
    GRECCO, Warden,
    Defendants-Appellees.
    ORDER AND JUDGMENT *
    Before HENRY, McKAY, and MURPHY, Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are
    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    This order and judgment is not binding precedent, except under the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.
    Lynda M. Fratis and Renee Polreis, prisoners of the State of Colorado
    appearing pro se, filed this suit under 
    42 U.S.C. § 1983
    , alleging that their
    constitutional rights are and will be violated by a plan of the State of Colorado to
    convert the sole Level II women’s facility to a different purpose and move all of
    the women to a new, higher-level facility. They alleged that they will be unable
    to progress to Level II and Level I facilities simply because they are women,
    while male inmates can make that progression because there are facilities for
    them at each security level. Plaintiffs also moved for a preliminary injunction to
    prevent the State of Colorado from closing the current Level II women’s facility.
    The district court denied the motion for a preliminary injunction because
    plaintiffs did not show that they have a constitutionally-protected liberty interest
    in their classification or placement. The court directed plaintiffs to file an
    amended complaint to cure pleading defects and demonstrate administrative
    exhaustion. Because Ms. Polreis did not do so, the court dismissed her from the
    suit for failure to prosecute, and she is not a party to these appeals. Ms. Fratis did
    filed an amended complaint, but the court dismissed her suit for failure to exhaust
    administrative remedies.
    In No. 05-1054, Ms. Fratis appeals from the district court’s denial of a
    preliminary injunction. We review this decision for an abuse of discretion.
    Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 
    269 F.3d 1149
    , 1153
    -2-
    (10th Cir. 2001). We have reviewed the record and appellant’s brief on appeal.
    We conclude that there is no abuse of discretion, and affirm the denial of a
    preliminary injunction for substantially the same reasons as those stated by the
    district court in its January 7, 2005 order.
    In No. 05-1135, Ms. Fratis appeals from the district court’s dismissal of her
    suit for failure to exhaust the three-step administrative grievance procedure.
    Appellant actually filed paperwork for all three steps. But the district court noted
    that the prison’s response to her step-three grievance was that she had not
    exhausted her administrative remedies because the Level II facility has not been
    closed and so her grievance was not based on an action that has occurred to her
    personally, as required by the regulation governing the grievance procedure. The
    court concluded that appellant had not exhausted her administrative remedies.
    We review de novo the district court’s dismissal for failure to exhaust.
    Fitzgerald v. Corr. Corp. of Am., 
    403 F.3d 1134
    , 1138 (10th Cir. 2005). Based
    on our review of appellant’s brief, the record, and the applicable regulation, the
    district court’s conclusion that Ms. Fratis failed to exhaust her administrative
    remedies was correct.
    -3-
    However, the district court did not specify whether its dismissal was with
    or without prejudice. 1 “[A] dismissal based on lack of exhaustion should
    ordinarily be without prejudice.” 
    Id. at 1139
    . “Under certain circumstances, a
    district court may, notwithstanding failure to exhaust, proceed to the merits of the
    claim and dismiss with prejudice if it concludes a party would be unsuccessful
    even absent the exhaustion issue.” 
    Id.
     Therefore “we vacate and remand for the
    court below to either modify its opinion to specify that the dismissal is without
    prejudice, or make a determination on the merits within its permissible scope to
    do so under 42 U.S.C. § 1997e(c)(2).” Id. at 1140.
    In No. 05-1054, the judgment of the district court is AFFIRMED. In
    No. 05-1135, the judgment of the district court is VACATED and the case is
    REMANDED for clarification whether its dismissal is with or without prejudice.
    Entered for the Court
    Michael R. Murphy
    Circuit Judge
    1
    We also note that the district court incorrectly filed an “order and judgment
    of dismissal” instead of entering its judgment on a separate document under
    Fed. R. Civ. P. 58(a)(1). See, e.g., Clymore v. United States, 
    415 F.3d 1113
    ,
    1117 & n.5 (10th Cir. 2005).
    -4-
    

Document Info

Docket Number: 05-1054, 05-1135

Citation Numbers: 168 F. App'x 865

Judges: Henry, McKAY, Murphy

Filed Date: 2/24/2006

Precedential Status: Non-Precedential

Modified Date: 8/3/2023