Kidd v. Baker ( 2023 )


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  • Appellate Case: 22-3285     Document: 010110823234       Date Filed: 03/08/2023    Page: 1
    FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                          Tenth Circuit
    FOR THE TENTH CIRCUIT                           March 8, 2023
    _________________________________
    Christopher M. Wolpert
    Clerk of Court
    ANTHONY S. KIDD,
    Plaintiff - Appellant,
    No. 22-3285
    v.                                              (D.C. No. 5:22-CV-03123-JWL-JPO)
    (D. Kan.)
    JEREMY BAKER; TYLER JONES;
    MICHAEL FALCK; JASON VSETECKA;
    (FNU) SIMMONS; JOHN DOE,
    Defendants - Appellees.
    _________________________________
    ORDER AND JUDGMENT*
    _________________________________
    Before McHUGH, MURPHY, and CARSON, Circuit Judges.
    _________________________________
    After examining Anthony Kidd’s written submissions and the appellate record,
    this panel has determined unanimously that oral argument would not materially assist
    in 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    This order and judgment is not binding precedent, except under the doctrines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. It may be cited, however, for
    its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    Appellate Case: 22-3285    Document: 010110823234        Date Filed: 03/08/2023     Page: 2
    Kidd appeals, pro se, from an order of the district court dismissing his
    
    42 U.S.C. § 1983
     civil rights complaint.1 In that complaint, Kidd alleged corrections
    officers at the Larned Correctional Mental Health Facility choked him and used
    excessive force after he was handcuffed and restrained. The district court noted
    Kidd’s action was properly dismissed on two independent grounds. First,
    considering only the facts upon which the parties agreed, the district court concluded
    Kidd’s complaint failed to state a claim. Alternatively, the district court concluded
    Kidd failed to exhaust his administrative remedies as required by 42 U.S.C.
    § 1997e(a). In so doing, the district court described at length the dual-track system
    of administrative exhaustion set out in Kansas law. The district court noted that
    because Kidd’s claims involved allegations of personal injury, the relevant path to
    exhaust his claims was that set out in 
    Kan. Admin. Regs. § 44-16
    -104a. And, as the
    district court correctly concluded, Kidd did not utilize the procedures set out in § 44-
    16-104a. See R. Vol. I at 35 (grievance resolution from unit manager specifically
    informing Kidd he could not utilize the grievance procedures set out in Article 15 of
    Chapter 44 of the Kansas Administrative Regulations to exhaust his personal injury
    claims); id at 40 (same as to warden).
    This court reviews de novo a dismissal for failure to exhaust. Jernigan v.
    Stuchell, 
    304 F.3d 1030
    , 1032 (10th Cir. 2002). A review of Kidd’s appellate
    1
    Kidd’s motion to proceed on appeal in forma pauperis is granted. 
    28 U.S.C. § 1915
    . He is reminded that he must continue making partial payments until the
    appellate filing fee is paid in full. 
    Id.
     § 1915(b)(1).
    2
    Appellate Case: 22-3285    Document: 010110823234           Date Filed: 03/08/2023   Page: 3
    arguments, the record, and the pertinent authorities demonstrates the district court
    correctly concluded Kidd’s complaint must be dismissed because Kidd failed to
    properly exhaust his administrative remedies.2 See id. Accordingly, the district court
    is affirmed for substantially those reasons relating to the issue of exhaustion set out
    in the order of dismissal dated December 7, 2022. This court need not, and does not,
    opine on the correctness of any aspect of the district court’s conclusion that Kidd’s
    complaint failed to state a valid excessive force claim.
    For those reasons set out above, the order of the United States District Court
    for the District of Kansas is hereby AFFIRMED.
    Entered for the Court
    Michael R. Murphy
    Circuit Judge
    2
    A dismissal for failure to exhaust is usually without prejudice. Fitzgerald v.
    Corr. Corp. of Am., 
    403 F.3d 1134
    , 1139 (10th Cir. 2005). In this case, however, the
    record indicates Kidd could not now file a timely administrative grievance. See 
    Kan. Admin. Regs. § 44-16
    -104a(a) (setting out a ten-day timeframe for filing a claim of
    personal injury). Thus, allowing Kidd an attempt to properly exhaust his claims
    would be futile. See Thompson v. Coulter, 
    680 F. App’x 707
    , 712 (10th Cir. 2017)
    (unpublished disposition cited exclusively for its persuasive value).
    3
    

Document Info

Docket Number: 22-3285

Filed Date: 3/8/2023

Precedential Status: Non-Precedential

Modified Date: 3/8/2023