609 F.3d 1114 (10th Cir. 2010), 09-6203, Thomas v. Parker

Docket Nº:09-6203, 09-6204.
Citation:609 F.3d 1114
Opinion Judge:BALDOCK, Circuit Judge.
Party Name:Jerry L. THOMAS, Plaintiff-Appellant, v. David PARKER; Rodney Redman; Becky Guffy; Betsy Hormel; Jim Reed; Shannon Reed; Amy Madison; Doug Byrd; Jay Drawbridge; Justin Jones; Richard Kirby; Ron Anderson; Debbie Morton; Leo Brown; Jo Gwinn; Brandy Page, Defendants-Appellees. Jerry L. Thomas, Plaintiff-Appellant, v. Becky Guffy; David Parker; Debbie
Attorney:Jerry L. Thomas, Pro se Appellant. Jill Tsiakilos, Assistant Attorney General, Oklahoma Attorney General's Office Litigation Section, Oklahoma City, OK, for Defendants-Appellees.
Judge Panel:Before BRISCOE, Chief Judge, BALDOCK, and TACHA, Circuit Judges.
Case Date:June 23, 2010
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1114

609 F.3d 1114 (10th Cir. 2010)

Jerry L. THOMAS, Plaintiff-Appellant,

v.

David PARKER; Rodney Redman; Becky Guffy; Betsy Hormel; Jim Reed; Shannon Reed; Amy Madison; Doug Byrd; Jay Drawbridge; Justin Jones; Richard Kirby; Ron Anderson; Debbie Morton; Leo Brown; Jo Gwinn; Brandy Page, Defendants-Appellees.

Jerry L. Thomas, Plaintiff-Appellant,

v.

Becky Guffy; David Parker; Debbie Morton; Rodney Redman; Betsy Hormel; Jay Drawbridge; Betsy Gwinn; Brandy Page; Ron Anderson; Bell; Barney Laird, Defendants-Appellees.

Nos. 09-6203, 09-6204.

United States Court of Appeals, Tenth Circuit.

June 23, 2010

Page 1115

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Page 1116

Submitted on the briefs: [*]

Jerry L. Thomas, Pro se Appellant.

Jill Tsiakilos, Assistant Attorney General, Oklahoma Attorney General's Office Litigation Section, Oklahoma City, OK, for Defendants-Appellees.

Before BRISCOE, Chief Judge, BALDOCK, and TACHA, Circuit Judges.

BALDOCK, Circuit Judge.

Both of these appeals are brought by pro se Oklahoma prisoner Jerry L. Thomas, also known as Madyun Abdulhaseeb. Mr. Thomas seeks to challenge various conditions of his confinement at the James Crabtree Correctional Center (JCCC), a prison in the Oklahoma Department of Corrections (ODOC). The issues on appeal are (1) whether in No. 09-6204 Mr. Thomas exhausted his administrative remedies; and (2) whether in both No. 09-6203 and No. 09-6204 the district court abused its discretion in denying Mr. Thomas's motions under Fed.R.Civ.P. 60(b)(3) alleging fraud on the court. This court on its own motion has consolidated these appeals for submission and disposition.

We have jurisdiction under 28 U.S.C. § 1291. We affirm the district court's decisions in all respects. Because Mr. Thomas's complaints about the defendants' conduct in No. 09-6203 are not baseless, we grant his motion to proceed on appeal without prepayment of costs and fees in No. 09-6203. But because he has become an abusive litigant with respect to his arguments about exhaustion, and he does not present any non-frivolous arguments concerning the denial of the Rule 60(b)(3) motion in No. 09-6204, in No. 09-6204 we deny his motion to proceed on appeal without prepayment of costs and fees and dismiss the appeal as frivolous.

I. BACKGROUND

Mr. Thomas has already unsuccessfully pursued claims about conditions at JCCC. In Thomas v. Parker, 318 Fed.Appx. 626, 627 (10th Cir.), cert. denied, __ U.S. __, 130 S.Ct. 249, 175 L.Ed.2d 170 (2009)( Thomas I ), this court affirmed the district court's conclusion that he abandoned two claims, failed to state a claim for relief with regard to two other claims, and failed to exhaust his administrative remedies with regard to the remaining claims. Mr. Thomas then filed a Fed.R.Civ.P. 60(b)(3) motion for relief from the judgment, arguing that defendants had committed fraud on the court by altering the grievances attached to the special report ordered by the court pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir.1978) (en banc). He alleged that defendants had deliberately

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submitted incomplete grievance sets and had altered the Grievance Log they tendered to the court. In denying the Rule 60(b)(3) motion, the district court held Mr. Thomas had raised such allegations and complaints before the court had issued its judgment. The court also held that the alleged wrongful conduct did not impede Mr. Thomas's ability to defend against the defendants' motion to dismiss. The denial of the Rule 60(b)(3) motion led to appeal No. 09-6203.

In a separate case, Mr. Thomas filed an eleven-count complaint challenging various conditions of confinement at JCCC. He stipulated to the dismissal of his first claim. The district court granted defendants' second motion for summary judgment and dismissed claims two through eleven, holding that, although Mr. Thomas had filed grievances relating to his claims, he had not exhausted his administrative remedies because he had not properly pursued the grievance process to its conclusion with regard to any of those claims. Mr. Thomas filed a Rule 60(b)(3) motion alleging that defendants had committed fraud on the court by submitting one set of grievance documents with their first (and unsuccessful) motion for summary judgment and a second, different set of grievance documents with their second motion for summary judgment. He also asserted that defendants had submitted incomplete and incorrect grievance paperwork in the case underlying appeal No. 09-6203. Similar to the ruling in No. 09-6203, the district court held Mr. Thomas had raised such allegations and complaints before the court had issued its judgment, and that the alleged wrongful conduct did not impede Mr...

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