Thomas v. Parker

• Citation: 609 F.3d 1114
• Decision Date: 23 June 2010
• Docket Number: 09-6204.,No. 09-6203,09-6203
• Parties: 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.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

609 F.3d 1114

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.

COPYRIGHT MATERIAL OMITTED

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 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. Thomas's ability to defend against the defendants' summary-judgment motion. The grant of summary judgment to defendants and the denial of the Rule 60(b)(3) motion led to appeal No. 09-6204.

II. ANALYSISA. Exhaustion of Administrative Remedies (No. 09-6204)

“There is no question that exhaustion is mandatory under the [Prisoner Litigation Reform Act (PLRA) ] and that unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). “We review de novo the district court's finding of failure to exhaust administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.2002). The ODOC grievance process has a requirement of informal consultation with staff, then three written steps: a Request to Staff form, a formal grievance, and an appeal to the administrative review authority. No. 09-6204, Record on Appeal at 1077-83.

With regard to each of his claims, Mr. Thomas submitted a Request to Staff form, and then he submitted a formal grievance. But he had been placed on grievance restriction, and his formal grievances did not comply with defendants' interpretation of ODOC's grievance-restriction policy. Defendants informed him that the required statement of prior grievances must be notarized (instead of containing an unnotarized declaration under penalty of perjury) and must describe prior grievances in more detail than the one-word descriptions he had used. Accordingly, defendants returned the formal grievances to Mr. Thomas as insufficient, with leave to correct within ten days. Rather than making any attempt to correct the grievances, Mr. Thomas appealed to the administrative review authority. In the earliest administrative appeal in the record on appeal in No. 09-6204, the review authority directed Mr. Thomas to file complete paperwork, including a facility response to the formal grievance, and returned the grievance unanswered. Shortly thereafter, the review authority warned him that incorrectly submitted appeals would be returned without a response. Ultimately the review authority notified him that noncompliant appeals would not be addressed or returned to him. Thus, his later appeals were left unanswered and unreturned. The issue is whether under these circumstances Mr. Thomas has satisfied ODOC's grievance process, and, thus, the mandatory exhaustion rule.

Mr. Thomas argues that defendants made the grievance process unavailable by placing him on grievance restriction and by requiring him to comply with their interpretations of the grievance-restriction requirements. Particularly, he complains that defendants required a notarized affidavit while denying him notary service, failed to provide the proper forms to allow him to appeal, failed to return documents to him as required by the grievance process, and imposed improper and arbitrary requirements on his paperwork (e.g., directing him to use more than one word to describe his prior grievances). He also argues that the review authority improperly refused to answer his appeals because the grievance policy (OP-090124, § IX.A.2) gives him the right to appeal the determination that he was abusing the grievance process.

“[T]he PLRA exhaustion requirement requires proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). “The benefits of exhaustion can be realized only if the prison grievance system is given a fair opportunity to consider the grievance. The prison grievance system will not have such an opportunity unless the grievant complies with the system's critical procedural rules.” Id. at 95, 126 S.Ct. 2378. Thus, “[i]n Woodford, we held that to properly exhaust administrative remedies prisoners must ‘complete the administrative review process in accordance with the applicable procedural rules,’ ...-rules that are defined not by the PLRA, but by the prison grievance process itself.” Jones, 549 U.S. at 218, 127 S.Ct. 910 (quoting Woodford, 548 U.S. at 88, 126 S.Ct. 2378).

The district court did not err in concluding that Mr. Thomas failed to exhaust his administrative remedies when he did not properly complete all three required written steps. “An inmate who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim under PLRA for failure to exhaust his administrative remedies.” Jernigan, 304 F.3d at 1032. “[T]he doctrine of substantial compliance does not apply.” Id. Once notified of deficiencies at the formal grievance stage, Mr. Thomas chose not to avail himself of the opportunity to cure them. He then chose to continue to submit formal grievances that were contrary to defendants' reasonable interpretation of the grievance requirements.¹ Mr. Thomas “may not successfully argue that he had exhausted his administrative remedies by, in essence, failing to employ them.” Id. at 1033.² As to his contentions about OP-090124, § IX.A.2, it appears that the first legal argument concerning this regulation appeared in Mr. Thomas's post-judgment motion for reconsideration. Such a motion “is not appropriate to ... advance arguments that could have been raised in prior briefing.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.2000). Thus, we decline to consider this argument.

Our adverse ruling should not come as a surprise to Mr. Thomas. Both this court and the...