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    Brown v. Eardley, 10th Cir. (2006)

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    The United States Court of Appeals for the Tenth Circuit affirmed the district court's dismissal of Brian Brown's claims of cruel and unusual punishment against federal prison personnel. The district court had ruled that Brown did not exhaust his administrative remedies within the prison system before filing suit, as required by law. On appeal, Brown argued that he had exhausted remedies or should be excused from the exhaustion requirement, but the appellate court found that he did not fully complete the grievance process or properly present arguments to the district court. The appellate court thus affirmed the dismissal of Brown's claims for failure to exhaust administrative remedies.

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    Brown v. Eardley, 10th Cir. (2006)

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    The United States Court of Appeals for the Tenth Circuit affirmed the district court's dismissal of Brian Brown's claims of cruel and unusual punishment against federal prison personnel. The district court had ruled that Brown did not exhaust his administrative remedies within the prison system before filing suit, as required by law. On appeal, Brown argued that he had exhausted remedies or should be excused from the exhaustion requirement, but the appellate court found that he did not fully complete the grievance process or properly present arguments to the district court. The appellate court thus affirmed the dismissal of Brown's claims for failure to exhaust administrative remedies.

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    Filed: 2006-06-12 Precedential Status: Non-Precedential Docket: 05-3174

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    The United States Court of Appeals for the Tenth Circuit affirmed the district court's dismissal of Brian Brown's claims of cruel and unusual punishment against federal prison personnel. The district court had ruled that Brown did not exhaust his administrative remedies within the prison system before filing suit, as required by law. On appeal, Brown argued that he had exhausted remedies or should be excused from the exhaustion requirement, but the appellate court found that he did not fully complete the grievance process or properly present arguments to the district court. The appellate court thus affirmed the dismissal of Brown's claims for failure to exhaust administrative remedies.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    22 views7 pages

    Brown v. Eardley, 10th Cir. (2006)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Tenth Circuit affirmed the district court's dismissal of Brian Brown's claims of cruel and unusual punishment against federal prison personnel. The district court had ruled that Brown did not exhaust his administrative remedies within the prison system before filing suit, as required by law. On appeal, Brown argued that he had exhausted remedies or should be excused from the exhaustion requirement, but the appellate court found that he did not fully complete the grievance process or properly present arguments to the district court. The appellate court thus affirmed the dismissal of Brown's claims for failure to exhaust administrative remedies.

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    of 7

    F I L E D

    United States Court of Appeals


    Tenth Circuit
    UNITED STATES CO URT O F APPEALS
    FO R TH E TENTH CIRCUIT

    June 12, 2006


    Elisabeth A. Shumaker
    Clerk of Court

    B RIA N L. B RO WN ,
    Plaintiff-Appellant,
    v.
    M . EARDLEY, Senior Correctional
    O fficer, U SP-Leavenw orth; (FNU)
    SEM ICK, Facility Lieutenant,
    U SP-Leavenw orth; (FN U ) G A LLY,
    Correctional Officer,
    USP-Leavenworth; (FNU) M ULLINS,
    Correctional Officer,
    U SP-Leavenw orth; (FN U ) A SHM AN,
    Unit M anager, UPS-Leavenworth;
    (FN U) HOW ARD, Correctional
    Counselor, U SP-Leavenworth; G. ,
    Case M anager, USP-Leavenworth;
    (FN U) CAVAJAL, Facility Captain,
    U SP-Leavenw orth; (FN U )
    NITCHELS, Former Associate
    W arden, USP-Leavenworth; HELEN
    M ARBERRY, Former Associate
    W arden, U SP-Leavenw orth; (FNU)
    M ELDNER, Unit M anager,
    U SP-Leavenw orth; (FN U ) G O ODIN,
    Special Investigator,
    USP-Leavenworth; (FNU) RO SALU S,
    Special Investigator,
    U SP-Leavenw orth; (FN U ) LA CY,
    Disciplinary Judge, USP-Leavenworth,
    Defendants-Appellees.

    No. 05-3174
    (D.C. No. 04-CV -3216-JW L)
    (D . Kan.)

    OR D ER AND JUDGM ENT *

    Before POR FIL IO, B AL DOC K , and EBEL, Circuit Judges.

    Plaintiff Brian L. Brown, a federal prisoner proceeding pro se, appeals the
    district courts order dismissing his claims of cruel and unusual punishment
    against federal prison personnel, brought pursuant to Bivens v. Six Unkown
    Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The district
    court ruled that dismissal was required because M r. Brown had not exhausted his
    administrative remedies by completing the prison grievance procedures.
    M r. Brown then filed a motion to reconsider, which the district court denied. W e
    affirm.
    Appellate Jurisdiction
    W e have appellate jurisdiction only over the district courts order
    dismissing M r. Browns claims. W hile his motion for reconsideration was

    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.
    -2-

    pending, M r. B row n filed a notice of appeal from the judgment of dismissal. H e


    did not file a new or amended notice of appeal after the district court entered the
    order denying reconsideration. Accordingly, we do not have jurisdiction over the
    order denying reconsideration. Fed. R. App. P. 4(a)(4)(B)(ii); Anderson v. State
    Farm M ut. Auto. Ins. Co., 416 F.3d 1143, 1147 (10th Cir. 2005).
    Background
    M r. Brown filed several prison grievances alleging that prison officials
    harassed and injured him. The district court determined that he had not fully
    exhausted any of the grievances. See Ross v. County of Bernalillo, 365 F.3d
    1181, 1189 (10th Cir. 2004) (holding that Prison Litigation Reform Act 42 U.S.C.
    1997e(a) contains a total exhaustion requirement; accordingly, where
    complaint contains unexhausted claims, district court is required to dismiss entire
    action). Consequently, the district court dismissed the complaint. 1
    On appeal, M r. Brown asserts (1) he followed the prison grievance
    procedures dictated by 28 C.F.R. 542.18 for emergencies, and he should be
    excused from complying with the filing deadlines because prison officials did not
    respond to his emergency grievances within the time provided by that section,
    (2) under Rhines v. Weber, 544 U.S. 269 (2005), the district court should not have
    dismissed his case, but should have granted him an opportunity to exhaust his

    The district court also ruled on various other motions, none of w hich are
    before us in this appeal.
    -3-

    administrative remedies, (3) prison officials had a deliberate practice of failing to


    process grievances in a timely manner, thus excusing him from complying with
    the required time limits, (4) prison officials instructions on how to meet time
    deadlines w ere so unclear and confusing as to excuse him from complying with
    the required time limits, and (5) although a prisoners untimely filing may be
    excused if the Bureau of Prisons provides a letter stating that the delay was not
    the prisoners fault, prison staff refused to provide these letters.
    Legal Framework
    Under the Prison Litigation Reform Act (PLRA), [n]o 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. 1997e(a). Exhaustion is required regardless of the relief offered
    through administrative procedures. Booth v. Churner, 532 U.S. 731, 741 (2001).
    Federal prisoners are required to follow a four-step grievance procedure.
    28 C.F.R. 542.13 - 542.18; Yousef v. Reno, 254 F.3d 1214, 1220 (10th Cir.
    2001). The plaintiff bears the burden of establishing exhaustion. Steele v. Fed.
    Bur. of Prisons, 355 F.3d 1204, 1210 (10th Cir. 2003).
    W e review de novo a district courts dismissal of an inmates suit for
    failure to exhaust his or her administrative remedies. Patel v. Fleming, 415 F.3d
    1105, 1108 (10th Cir. 2005). Plaintiff is representing himself on appeal so his
    -4-

    pleadings will be liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21
    (1972). Although we construe liberally M r. Browns pro se pleadings and hold
    them to a less stringent standard than formal pleadings drafted by lawyers, [he]
    must nonetheless set forth sufficient facts to support [his] claims. Diaz v. Paul
    J. Kennedy Law Firm, 289 F.3d 671, 674 (10th Cir. 2002) (citing Hall v. Bellmon,
    935 F.2d 1106, 1110-12 (10th Cir. 1991)). M oreover, this court generally does
    not address issues that were not presented to the district court. Wilburn v.
    M id-South Health Dev., Inc., 343 F.3d 1274, 1280 (10th Cir. 2003).
    Discussion
    M r. Brown first asserts that his prison grievances w ere exhausted fully
    under 28 C.F.R. 542.18. He argues that because his grievances were
    emergencies, the wardens response was required within three days, rather than
    twenty calendar days. He relies on the following language of 542.18: If the
    [A dministrative Remedy] Request is determined to be of an emergency nature
    which threatens the inmates immediate health or welfare, the W arden shall
    respond not later than the third calendar day after filing. The warden did not
    respond within three days of the date he filed any of his six grievances.
    Therefore, according to M r. Brown, he is excused from complying with the
    grievance procedure time limits.
    W e need not address how 542.18s provision for treatment of an emergency
    grievance should be applied because even if it should have been applied to
    -5-

    M r. Browns grievances, he was still required to exhaust fully those grievances.


    Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (holding inmate who
    begins the grievance process but does not complete it is barred from pursuing a [civil
    rights] claim under PLR A for failure to exhaust his administrative remedies).
    M r. B rown does not claim that he exhausted his grievances according to the
    procedures mandated by 28 C.F.R. 542.13 through 542.18. Accordingly, w e
    affirm the district courts order dismissing M r. Browns claims for failure to exhaust
    administrative remedies.
    M r. Brown next argues that the district court should not have dismissed his
    case but, instead, should have permitted him to exhaust his prison grievance
    remedies. He asserts that under Rhines v. Weber, 544 U.S. 269 (2005), the
    district court had the discretion to hold his case open until his claims were
    exhausted. Rhines is inapposite. It addresses the problem of a mixed petition
    for habeas corpus relief in which a state prisoner presents a federal court with a
    single petition containing some claims that have been exhausted in the state
    courts and some that have not. 544 U.S. at 271. The district court correctly
    dismissed M r. Browns claims pursuant to Ross, which requires a district court to
    dismiss the entire action without prejudice when the complaint includes
    unexhausted claims. Ross, 365 F.3d at 1189.
    Finally, M r. Brown argues that he should be excused from the exhaustion
    requirement because prison officials (1) engaged in a deliberate practice of failing
    -6-

    to process grievances in a timely manner, (2) did not clearly instruct him on how
    to meet the filing deadlines, and (3) refused to prepare the necessary letters to
    explain that the filing delays were not his fault. W e do not address the merits of
    these arguments because they were not presented to the district court or they were
    raised for the first time in the post-judgment motion to reconsider. As noted
    above, w e decline to consider issues not presented to the district court, and we
    have no jurisdiction to review the order denying reconsideration. In making this
    determination, we have carefully review ed the record on appeal, particularly
    documents 91 and 92, which are M r. Browns response and brief in opposition to
    defendants motion to dismiss.
    The district court granted M r. Browns motion to proceed without
    prepayment of costs and fees. He is reminded that he is obligated to continue
    making partial payments until the entire fee has been paid.
    The judgment of the district court is AFFIRMED.

    Entered for the Court

    Bobby R. Baldock
    Circuit Judge

    -7-

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