Gallagher v. Shelton

• Decision Date: 24 November 2009
• Docket Number: No. 09-3113.,09-3113.
• Citation: 587 F.3d 1063
• Parties: Michael P. GALLAGHER, Plaintiff-Appellant, v. J.L. SHELTON, Warden, Norton Correctional Facility; R.C. Perdue, Deputy Warden, Norton Correctional Facility; Roger Werholtz, Secretary of Corrections; Galen Penner, Chaplain, Norton Correctional Facility; (FNU) Growell, Aramark Supervisor, Norton Correctional Facility; (FNU) Ratliff, Aramark Employee/Line Supervisor, Norton Correctional Facility; Gloria Geither, Director of Religious Programs, Kansas Department of Corrections, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

587 F.3d 1063

Michael P. GALLAGHER, Plaintiff-Appellant, v. J.L. SHELTON, Warden, Norton Correctional Facility; R.C. Perdue, Deputy Warden, Norton Correctional Facility; Roger Werholtz, Secretary of Corrections; Galen Penner, Chaplain, Norton Correctional Facility; (FNU) Growell, Aramark Supervisor, Norton Correctional Facility; (FNU) Ratliff, Aramark Employee/Line Supervisor, Norton Correctional Facility; Gloria Geither, Director of Religious Programs, Kansas Department of Corrections, Defendants-Appellees.

No. 09-3113.

United States Court of Appeals, Tenth Circuit.

November 24, 2009.

Submitted on the briefs: Michael P. Gallagher, pro se.

Steve Six, Kansas Attorney General and Eric J. Aufdengarten, Assistant Attorney General, Topeka, KS, for Defendants-Appellees Werholtz, Geither, Shelton, Perdue and Penner.

Marcos Barbosa of Baker, Sterchi, Cowden & Rice, L.L.C.-KC, Kansas City, MO, for Defendants-Appellees Ratliff and Growell.

Before KELLY, BRISCOE, and HOLMES, Circuit Judges.

BRISCOE, Circuit Judge.

Plaintiff Michael P. Gallagher, an inmate in the custody of the Kansas Department of Corrections appearing pro se, appeals the district court's dismissal of his 42 U.S.C. § 1983 action. The district court dismissed Gallagher's amended complaint for failure to exhaust administrative remedies and for failure to state a claim. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the dismissal of Counts I, II, and III of Gallagher's complaint. We also affirm the dismissal of Gallagher's claims on Counts IV and V, but we remand with directions to vacate the dismissal on Counts IV and V only for the purpose of clarifying that such dismissal is without prejudice.^{1 2}

I

Gallagher, an Orthodox Jew, alleged in his complaint that while he was in custody at the Norton Correctional Facility ("NCF") in Norton, Kansas, the defendants violated his right to free exercise of religion and equal treatment pursuant to the First and Fourteenth Amendments. In his original complaint, Gallagher alleged three grounds for relief: (I) his requests for religious accommodations were untimely approved; (II) he did not receive food that was prepared in accordance with kosher requirements, a defendant made an offensive comment regarding his religion, and his kosher meal did not include a special dessert comparable to the general population on the Fourth of July; and (III) prison officials did not adequately review his grievances. Gallagher then amended his complaint to include two additional counts: (IV) he was served a meal tainted with bodily fluids; and (V) the prison chaplain failed to help him obtain a Menorah and candles in order to celebrate Hanukkah. Gallagher brought these claims against several defendants: Kansas Secretary of Corrections Werholtz, Kansas Department of Corrections Director of Religious Programs Geither, former NCF chaplain Rev. Penner, NCF Warden Shelton, NCF Deputy Warden Perdue, and Ms. Growell³ and Ms. Ratliff, employees of ARAMARK Correctional Services, LLC, a private company which prepares and serves food to inmates at NCF.⁴

The district court requested the preparation of a Martinez report.⁵ The report detailed that Gallagher fully exhausted his administrative remedies related to Counts I, II, and III. However, the report noted that Counts IV and V were not administratively exhausted, and no grievance had been filed relating to either count. Defendants subsequently filed motions to dismiss, arguing that Gallagher failed to exhaust his administrative remedies and failed to state a claim.

After considering the pleadings, the Martinez report, and defendants' motions to dismiss, the district court dismissed Gallagher's complaint. The district court concluded that Gallagher had failed to exhaust his administrative remedies regarding Counts IV and V, and the district court dismissed the remaining counts pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.

Gallagher timely appealed the dismissal of his complaint, claiming that the defendants interfered with his right to exercise his religion. The district court granted Gallagher's motion for leave to proceed in forma pauperis on appeal. Gallagher argues on appeal: (1) the district court incorrectly construed his responses to the district court's order to show cause on September 28, 2004 as an amended complaint; (2) the district court improperly denied his Motion for Trial Per Pais; (3) defendants violated his right to receive a kosher diet; (4) he was refused his right to celebrate his religious holidays, and the district court did not read his motions and exhibits; and (5) his Motion to Open Proceedings and his request to collect evidence were incorrectly denied.⁶

II

"We review de novo a district court's dismissal of an inmate's suit for failure to exhaust his or her administrative remedies." Patel v. Fleming, 415 F.3d 1105, 1108 (10th Cir.2005). We also review de novo a district court's dismissal pursuant to Rule 12(b)(6). Russell v. United States, 551 F.3d 1174, 1178 (10th Cir.2008). Because Gallagher is appearing pro se, we construe his pleadings and papers liberally, but our role is not to act as his advocate. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.2005).

A. Failure to Exhaust Administrative Remedies

We begin with the district court's dismissal of Counts IV and V for failure to exhaust administrative remedies. The Prison Litigation Reform Act provides that "no action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 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). Failure to exhaust is an affirmative defense; a plaintiff is not required to plead or demonstrate exhaustion in the complaint. Freeman v. Watkins, 479 F.3d 1257, 1260 (10th Cir.2007).

In support of their motion to dismiss, defendants argued that Gallagher failed to exhaust his remedies on Counts IV and V. Although Gallagher responded to the defendants' motions to dismiss, he did not contest the failure to exhaust his administrative remedies. Upon reviewing the pleadings, exhibits, and the uncontroverted Martinez report,⁷ the district court concluded that Gallagher did not exhaust his administrative remedies. The record indicates that Gallagher did not file a grievance regarding the allegation that there were bodily fluids in his meal (Count IV). Additionally, Gallagher did not seek administrative remedies or file a grievance relating to his request for a Menorah and candles for Hanukkah (Count V). See ROA, at 203 (Doc. 45 at 3).

On appeal, Gallagher asserts that he did write a grievance relating to Count IV, alleging that there were bodily fluids in his meal, but that the grievance was lost. In his response to defendants' motion to dismiss before the district court, Gallagher did not contend that he filed such a grievance, or that any grievances were lost or misplaced. Indeed, the district court explicitly noted that Gallagher did not contest his failure to exhaust administrative remedies, nor did he contend he was prevented from pursuing administrative relief. Because Gallagher did not raise this issue in the district court, we do not consider that argument on appeal. See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir.1994) ("Absent compelling reasons, we do not consider arguments that were not presented to the district court."); see also Shaw v. Rogers, 250 Fed.Appx. 908, 910 (10th Cir.2007) (unpublished) (applying general rule to pro se litigant claiming on appeal that he asked for a grievance form but did not receive it). Gallagher does not contest the district court's conclusion that he failed to exhaust his administrative remedies relating to Count V. Because Gallagher failed to exhaust his administrative remedies, the district court properly dismissed Counts IV and V.

In its conclusion, the district court ruled that "defendants' motions to dismiss the amended complaint . . . are granted, and that the amended complaint is dismissed and all relief is denied." ROA, at 501 (Doc. 81 at 17). But, the district court did not specify whether its dismissal of Counts IV and V was with or without prejudice. Ordinarily, a dismissal based on a failure to exhaust administrative remedies should be without prejudice. Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1139 (10th Cir.2005). Therefore, while we uphold the district court's conclusion that Gallagher failed to exhaust his administrative remedies relating to Counts IV and V, we remand to the district court with directions to vacate its dismissal only to clarify that this dismissal is without prejudice. See id. at 1140.

The record indicates that Gallagher did exhaust his administrative remedies on Counts I through III, and the defendants do not dispute that conclusion. Therefore, we turn to the district court's dismissal of Counts I through III for failure to state a claim. See Jones v. Bock, 549 U.S. 199, 219-21, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (rejecting a requirement of total exhaustion of all claims).

B. Failure to State a Claim

The district court granted defendants' motion to dismiss the remaining three counts for failure to state a claim pursuant to Rule 12(b)(6). In reviewing the district court's dismissal pursuant to Rule 12(b)(6), we assume the factual allegations are true and ask whether it is plausible that the plaintiff is entitled to relief. Christy Sports, LLC v. Deer Valley Resort Co., Ltd., 555 F.3d 1188, 1191 (10th Cir.2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Conclusory allegations are not enough to withstand a motion to dismiss. See Cory v....