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    Turrietta v. Barreras, 10th Cir. (2004)

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    1) Rick Turrietta filed a §1983 civil rights lawsuit against officials at the Valencia County Detention Center alleging he was injured during a strip search where excessive force was used and denied medical treatment. 2) The district court dismissed the suit without prejudice for failing to exhaust administrative remedies by not filing a grievance as required under the Prison Litigation Reform Act. 3) On appeal, the Tenth Circuit affirmed, finding that while exhaustion is not jurisdictional, Turrietta did not provide sufficient reasons to be excused from the exhaustion requirement.

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    Turrietta v. Barreras, 10th Cir. (2004)

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    1) Rick Turrietta filed a §1983 civil rights lawsuit against officials at the Valencia County Detention Center alleging he was injured during a strip search where excessive force was used and denied medical treatment. 2) The district court dismissed the suit without prejudice for failing to exhaust administrative remedies by not filing a grievance as required under the Prison Litigation Reform Act. 3) On appeal, the Tenth Circuit affirmed, finding that while exhaustion is not jurisdictional, Turrietta did not provide sufficient reasons to be excused from the exhaustion requirement.

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    Filed: 2004-02-05 Precedential Status: Non-Precedential Docket: 02-2343

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    1) Rick Turrietta filed a §1983 civil rights lawsuit against officials at the Valencia County Detention Center alleging he was injured during a strip search where excessive force was used and denied medical treatment. 2) The district court dismissed the suit without prejudice for failing to exhaust administrative remedies by not filing a grievance as required under the Prison Litigation Reform Act. 3) On appeal, the Tenth Circuit affirmed, finding that while exhaustion is not jurisdictional, Turrietta did not provide sufficient reasons to be excused from the exhaustion requirement.

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    25 views6 pages

    Turrietta v. Barreras, 10th Cir. (2004)

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    1) Rick Turrietta filed a §1983 civil rights lawsuit against officials at the Valencia County Detention Center alleging he was injured during a strip search where excessive force was used and denied medical treatment. 2) The district court dismissed the suit without prejudice for failing to exhaust administrative remedies by not filing a grievance as required under the Prison Litigation Reform Act. 3) On appeal, the Tenth Circuit affirmed, finding that while exhaustion is not jurisdictional, Turrietta did not provide sufficient reasons to be excused from the exhaustion requirement.

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    of 6

    F I L E D

    UNITED STATES COURT OF APPEALS


    FOR THE TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    FEB 5 2004

    PATRICK FISHER
    Clerk

    RICK TURRIETTA,
    Plaintiff-Appellant,
    v.
    LAWRENCE BARRERAS, Senior
    Warden, Valencia County Detention
    Center; JOHN DOE, also known as
    Capt. Menjia, also known as C/O Diaz,
    Valencia County Detention Center,

    No. 02-2343
    (D.C. No. CIV-01-680 JP/LFG)
    (D. N.M.)

    Defendants-Appellees.
    ORDER AND JUDGMENT
    Before MURPHY and PORFILIO , Circuit Judges, and
    Judge.

    BRORBY , Senior Circuit

    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of

    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.

    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.
    Plaintiff Rick Turrietta, a state inmate appearing pro se, appeals from the
    district courts order adopting the magistrate judges recommendation to dismiss
    without prejudice his action brought under 42 U.S.C. 1983 on the ground that he
    did not exhaust administrative remedies. We exercise jurisdiction under
    28 U.S.C. 1291 and affirm.
    Mr. Turriettas claims arose from an incident occurring in October of 2000,
    while he was a pretrial detainee in the Valencia County Detention Center. He
    alleges that he was injured during a strip search during which jail personnel used
    excessive force, and that he was denied necessary medical and psychological
    treatment for those injuries. Following the incident at the Valencia County
    facility, he was transferred to the Santa Fe County Detention Facility. Both jails
    were run by the same private entity, and both maintained inmate grievance
    procedures. There is no dispute that Mr. Turrietta did not file a grievance or
    other administrative complaint.
    A jail detainee must exhaust administrative grievances before filing his
    civil rights lawsuit in federal court. 42 U.S.C. 1997e(a) (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 . . . until such administrative
    -2-

    remedies as are available are exhausted.). Exhaustion is mandatory. Booth v.


    Churner, 532 U.S. 731, 741 (2001). The exhaustion requirement applies to a
    single incident of unreasonable force. Porter v. Nussle, 534 U.S. 516, 532
    (2002). We review de novo a district courts determination that a prisoner failed
    to exhaust administrative remedies. Jernigan v. Stuchell, 304 F.3d 1030, 1032
    (10th Cir. 2002). [W]e will assume, without deciding, that [ 1997e(a)] applies
    to private prisons.

    Beaudry v. Corr. Corp of Am. , 331 F.3d 1164, 1166 (10th

    Cir. 2003), cert. denied , 2004 WL 47068, (U.S. Jan. 12, 2004).
    Mr. Turrietta does not contest defendants position that in order to exhaust
    administrative remedies, he was required to file a grievance with jail personnel,
    which he did not do. He asserts, however, that he should be excused from the
    exhaustion requirement. Because exhaustion under 1997e(a) is not
    jurisdictional, Steele v. Fed. Bureau of Prisons

    , No. 02-1492, 2003 WL 23019855,

    *3 (10th Cir. Dec. 29, 2003), we consider Mr. Turriettas reasons for not filing a
    grievance.
    Mr. Turrietta claims that he should be excused from the exhaustion
    requirement for the following reasons: (1)

    he was prevented from filing a

    grievance because he was moved from jail to jail and was kept in solitary
    confinement until the deadline for filing had passed; (2) he was never informed of
    the grievance procedure; (3) administrative remedies were not available because
    -3-

    they did not permit requests for money damages by jail detainees; (4) a jail
    warden told him that if he complained, he would be transferred to another jail,
    where he could not get any visits; and (5) the jail rules, including the grievance
    policy, were not in effect at the time of his incident, as evidenced by the various
    revision dates on the forms that prove they were back dated.
    Addressing these claims in order, we first determine that Mr. Turrietta has
    not alleged facts to support his charge that he could not have filed a grievance
    while at the transferee jail or while in solitary confinement. The mere fact that he
    was transferred and confined does not direct the conclusion that he was thereby
    prevented from filing a grievance, particularly since he was able to submit, and
    did submit, requests for medical treatment during that time.
    Pawnee County Bd. of County Commrs

    See Erikson v.

    , 263 F.3d 1151, 1154-55 (10th Cir. 2001)

    (holding claim insufficient because not supported by allegation of specific facts).


    We also hold that the mandatory exhaustion requirement cannot be excused
    on the ground that the detainee was not informed of the grievance procedure.

    Cf.

    Yousef v. Reno, 254 F.3d 1214, 1221 (10th Cir. 2001) (rejecting federal inmates
    claim that authorities should have told him he needed to follow administrative
    procedures). [W]e will not read futility or other exceptions into statutory
    exhaustion requirements where Congress has provided otherwise. Booth,
    532 U.S. at 741 n.6 (emphasis added). Section 1997a(e) says nothing about a
    -4-

    prisoners subjective beliefs, logical or otherwise, about the administrative


    remedies that might be available to him. The statutes requirements are clear: If
    administrative remedies are available, the prisoner must exhaust them. Chelette
    v. Harris, 229 F.3d 684, 688 (8th Cir. 2000).
    The Supreme Court has rejected Mr. Turriettas next argument, that a
    prisoner is excused from the exhaustion requirement where the relief requested is
    not available under the applicable grievance policy. Booth, 532 U.S. at 736, 741
    & n.6.
    As for his claim that a jail warden cautioned him that if he filed a
    grievance, he would risk being transferred, Mr. Turrietta concedes that this
    statement was made after the deadline to file a grievance had expired. Therefore,
    even if this allegation is true, the wardens statement did not prevent
    Mr. Turrietta from exhausting administrative remedies.
    Finally, we decline to address Mr. Turriettas charge that the grievance
    policy was not in effect because he did not present this argument to the district
    court. He has not cited to the record where this issue was raised in the district
    court, see Fed. R. App. P. 28(a)(7), (9)(A); 10th Cir. R. 28.2(C)(2), and our
    review has not revealed that he did. We do not consider claims presented for the
    first time on appeal.

    Walker v. Mather (In re Walker)

    Cir. 1992).
    -5-

    , 959 F.2d 894, 896 (10th

    Mr. Turriettas motion to proceed without prepayment of costs and fees is


    granted. 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. The mandate shall issue
    forthwith.

    Entered for the Court

    Michael R. Murphy
    Circuit Judge

    -6-

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