Patel v. Fleming, 04-6266.

Decision Date20 July 2005
Docket NumberNo. 04-6266.,04-6266.
Citation415 F.3d 1105
PartiesKamal K. PATEL, Plaintiff-Appellant, v. L.E. FLEMING, Warden; Dr. Malcher, FNU; John Doe, Health Service Administrator; John Doe, Health Service Personnel; John Doe, Associate Warden; FNU Morris; FNU Roberts; Tom F. Goforth, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Kamal K. Patel, pro se.

Robert G. McCampbell, K. Lynn Anderson, Office of the United States Attorney for the Western District of Oklahoma, Oklahoma City, OK, for Defendants-Appellees.

Before EBEL, McKAY and HENRY, Circuit Judges.

EBEL, Circuit Judge.

Plaintiff Kamal K. Patel ("Plaintiff"), a prisoner appearing pro se, brings suit pursuant to 42 U.S.C. § 1983 challenging the conditions of his incarceration at two federal correctional facilities in Oklahoma. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM the judgment of the district court dismissing Plaintiff's suit based on his failure to exhaust his administrative remedies. We DENY Plaintiff's motion to reconsider our order striking an issue related to a separate case that he raised in his opening brief. We also DENY as moot Plaintiff's motion to supplement the record on appeal. Finally, we decline to revisit our order disposing of Plaintiff's motion requesting that we force Defendants to provide Plaintiff with copies of certain filings, based on a response that Defendants filed to that motion after we had already ruled on it.

I. Background

Plaintiff was incarcerated at the Federal Correctional Institute ("FCI") in El Reno, Oklahoma, from January 2000 until December 6, 2000. Plaintiff was then transferred to the Federal Transfer Center ("FTC") in Oklahoma City, Oklahoma, where he was incarcerated until July 9, 2001. Plaintiff's claims in this lawsuit center on the alleged conditions of his incarceration at these two facilities. On July 9, 2001, Plaintiff was transferred to a federal correctional facility in Texas. This lawsuit does not involve the alleged conditions of his incarceration in that Texas facility, or any other facility to which Plaintiff was subsequently transferred.

In this suit, Plaintiff claims that "his Eighth Amendment rights to medical care were violated by the deliberate indifference of prison officials at FCI El Reno and FTC Oklahoma City in failing to treat a pinched nerve in his neck." Plaintiff also claims that "his Eighth Amendment rights to be free from unreasonable exposure to secondhand smoke were violated by the actions of prison officials at FCI El Reno in requiring him to be housed in a smoking unit and in a cell with a chain-smoker despite [Plaintiff]'s requests for non-smoking housing."1

Plaintiff initiated this suit in December 2002 by filing a pro se complaint in the United States District Court for the Western District of Oklahoma.2 On December 16, 2002, the district court referred this case to a magistrate judge for initial proceedings. On September 2, 2003, Defendants moved to dismiss the suit. On February 2, 2004, the magistrate judge recommended that the case be dismissed without prejudice based on Plaintiff's failure to exhaust his administrative remedies. On March 30, 2004, the district court adopted the magistrate judge's report and recommendation over Plaintiff's objections and dismissed the case. On August 9, 2004, Plaintiff filed a notice of appeal.

II. Analysis
A. Plaintiff's Failure to Exhaust Administrative Remedies

We review de novo a district court's dismissal of an inmate's suit for failure to exhaust his or her administrative remedies. Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.2002).3 The Prison Litigation Reform Act ("PLRA") states that "[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); see also Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). As we explained in Jernigan, "[e]ven where the `available' remedies would appear to be futile at providing the kind of remedy sought, the prisoner must exhaust the administrative remedies available." 304 F.3d at 1032 (citing Booth v. Churner, 532 U.S. 731, 740, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001)). Moreover, we have held that "the PLRA contains a total exhaustion requirement, and ... the presence of unexhausted claims in [prisoner]'s complaint require[s][a] district court to dismiss his [or her] action in its entirety without prejudice." Ross v. County of Bernalillo, 365 F.3d 1181, 1189 (10th Cir. 2004); see also Graves v. Norris, 218 F.3d 884, 885 (8th Cir.2000) (per curiam) ("When multiple prison condition claims have been joined ... § 1997e(a) requires that all available prison grievance remedies must be exhausted as to all of the claims.").

To exhaust his or her administrative remedies, an inmate in a federal prison must complete a four-step process before filing suit. This process is laid out in the Code of Federal Regulations, as well as a parallel Bureau of Prisons ("BOP") Program Statement. See generally 28 C.F.R. § 542 (2004); BOP Program Statement 1330.13 (2002). First, an inmate usually must attempt to informally resolve his or her concerns with prison staff. 28 C.F.R. § 542.13. If this attempt fails, an inmate must submit a formal written Administrative Remedy Request within twenty days of the date on which the basis for the Request occurred. Id. § 542.14(a). If the Request does not provide satisfactory relief, an inmate must appeal the resolution of his or her Request to the appropriate BOP Regional Director within twenty days. Id. § 542.15(a). Finally, if an inmate disagrees with the Regional Director's decision, the inmate must appeal the decision to the BOP's General Counsel within thirty days. Id. § 542.15(a).

We have held that if an inmate does not comply with the time limits laid out in 28 C.F.R. § 542, he or she has not properly exhausted his or her administrative remedies. As we noted in Ross,

the PLRA ... contains a procedural default concept within its exhaustion requirement. A prison procedure that is procedurally barred and thus is unavailable to a prisoner is not thereby considered exhausted. Regardless of whether a prisoner goes through the formality of submitting a time-barred grievance, he may not successfully argue that he has exhausted his administrative remedies by, in essence, failing to employ them.

365 F.3d at 1186 (citations, quotations omitted).

In this case, Plaintiff failed to exhaust his administrative remedies regarding his alleged exposure to secondhand smoke because he did not submit a written Administrative Remedy Request within twenty days of the date on which the basis for the Request occurred, as required by 28 C.F.R. § 542.14(a).4 Plaintiff first filed such a Request regarding his alleged exposure to cigarette smoke on September 4, 2001. This Request was necessarily filed more than twenty days after the date on which the basis for the Request arose because Plaintiff was not incarcerated at FCI El Reno after December 6, 2000 — approximately nine months before Plaintiff filed his Request.5

Plaintiff argues that his late filing of a Request should be excused because BOP policy establishes that the twenty-day filing deadline is flexible. The BOP does encourage Remedy Coordinators to be flexible in deciding whether to reject a Request that is filed late. See BOP Program Statement 1330.13(11)(b)(3).6 However, while flexibility in accepting belated filings is encouraged, such flexibility is not required. See 28 C.F.R. § 542.17 ("The Coordinator at any level may reject and return to the inmate without response a Request ... that . . . does not meet any other requirement of this part."); see also BOP Program Statement 1330.13(11)(a) (same); Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.2002) ("To exhaust administrative remedies, a person must follow the rules governing filing and prosecution of a claim.... [T]hese include time limits."). Thus Plaintiff's belated filing must not be excused on the grounds that the twenty-day filing deadline is flexible.

Nor must Plaintiff's belated filing be excused based on the circumstances that he asserts necessitated the late filing. The period in which an inmate may file a Request may be extended

[w]here the inmate demonstrates a valid reason for delay. . . . In general, valid reason for delay means a situation which prevented the inmate from submitting the request within the established time frame. Valid reasons for delay include the following: an extended period in-transit during which the inmate was separated from documents needed to prepare the Request ...; an extended period of time during which the inmate was physically incapable of preparing a Request. . .; an unusually long period taken for informal resolution attempts; [or an] indication by an inmate, verified by staff, that a response to the inmate's request for copies of dispositions ... was delayed.

28 C.F.R. § 542.14(b).

In this case, Plaintiff explains that he did not file his Request earlier because he was "earnestly" attempting to resolve his concerns informally and did not want to "rock the boat." However, 28 C.F.R. § 542.14(b) vests the discretion to grant an extension in filing time with officials within the Bureau of Prisons, not an individual inmate. An inmate cannot unilaterally extend the twenty-day time limit for making a formal filing based on a desire to resolve his or her claims informally. In this case, no official within the Bureau of Prisons granted Plaintiff an extension. Plaintiff's own decision to rely on informal methods to resolve his concerns is not sufficient to extend the deadline for filing a formal Request. Moreover, we see no basis in the record that suggests that the Bureau of Prisons should have granted Plaintiff an...

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