Ross v. County of Bernalillo

• Decision Date: 28 April 2004
• Docket Number: No. 02-2337.,02-2337.
• Citation: 365 F.3d 1181
• Parties: Michael Rene ROSS, Plaintiff-Appellant, v. COUNTY OF BERNALILLO, County of McKinley, Correctional Services Corporation, Management & Training Corporation, Nurse Jeannie King, John Does (Unknown Others), Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1181

365 F.3d 1181

Michael Rene ROSS, Plaintiff-Appellant, v. COUNTY OF BERNALILLO, County of McKinley, Correctional Services Corporation, Management & Training Corporation, Nurse Jeannie King, John Does (Unknown Others), Defendants-Appellees.

No. 02-2337.

United States Court of Appeals, Tenth Circuit.

April 28, 2004.

Submitted on the briefs:¹ Michael Rene Ross, pro se.

Patrick D. Allen, Yenson, Lynn, Allen & Wosick, P.C., for Defendant-Appellee County of Bernalillo.

Sean Olivas, Melanie Frassanito, Keleher & McLeod, P.A., for Defendant-Appellee County of McKinley.

Emily A. Franke, Butt, Thornton & Baehr, P.C., for Defendant-Appellee Correctional Services Corporation.

Michele U. Estrada, Madison, Harbour, Mroz & Brennan, P.A., for Defendants-Appellees Management & Training Corporation and Nurse Jeannie King.

Before EBEL, HENRY and MURPHY, Circuit Judges.

EBEL, Circuit Judge.

In this prisoner suit, plaintiff Michael Rene Ross brings Eighth Amendment claims against several defendants alleging that a slippery shower floor was unreasonably dangerous and that he did not receive appropriate medical attention after falling in the shower and injuring his shoulder. Applying a total exhaustion rule, the district court dismissed these claims without prejudice for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act ("PLRA"). We agree that a total exhaustion rule applies, and we AFFIRM.

BACKGROUND

On November 29, 1999, Ross fell in the shower at the McKinley County Detention Center ("MCDC") and claims to have seriously injured his shoulder. According to Ross, he fell because the shower floor was smooth and concrete and because the shower was not outfitted with slip-resistant mats (mats that had previously been in the shower had been destroyed weeks earlier by other inmates).

On December 1, 1999, Ross filed a Sick Call Request in which he sought a medical appointment due to a shoulder injury he sustained as a result of his fall. On that same day, Ross submitted an Inmate Grievance Form in which he complained primarily about having been transferred to administrative segregation. In that grievance form, Ross also complained about a "lack of medical treatment for serious injury to shoulder." His grievance was rejected on the grounds that it presented a non-grievable issue. Nevertheless, Ross did see a doctor for shoulder treatment the next day, December 2, three days after his fall.

On December 6, Ross filed another Sick Call Request seeking pain medication for his shoulder injury. He filed additional Sick Call Requests or Inmate Medical Request Forms seeking further medical treatment, medication, or the like on December 9, December 14, December 23, February 21, 2000, March 2, April 17, May 10, May 28, June 12, and July 5. However, after December 1, 1999, he did not again seek to invoke the prison's grievance process with respect to any alleged inadequate medical care.

Also on December 6, 1999, Ross filed a Pre-Grievance Resolution Form reporting his November 29 fall, complaining that the shower floor was unsafe because it was smooth and lacked mats, and requesting that this problem be corrected. On December 8, the grievance officer responded that a shower mat had since been placed in the shower where Ross had fallen.

For the majority of the time relevant to this case, Ross was in the custody of MCDC. At the time of Ross' injury and until early January 2000, MCDC was operated by defendant Correctional Services Corporation ("CSC"), a private entity. In early January 2000, defendant Management & Training Corporation ("MTC"), another private entity, took over operation of the MCDC facility. Between February 4, 2000, and February 25, 2000, however, Ross was temporarily held at the Bernalillo County Detention Center ("BCDC").²

In October 2000, Ross brought this action pro se alleging two sets of Eighth Amendment cruel and unusual punishment claims. First, Ross claims that defendants County of McKinley, County of Bernalillo, and Correctional Services Corporation were responsible for maintaining an unreasonably unsafe shower facility. Second, he claims that all defendants were deliberately indifferent to his medical needs by failing to give him adequate treatment for his injury.³

The district court dismissed all of Ross' claims without prejudice for failure to exhaust administrative remedies as required by the PLRA. The district court concluded that "it appears that Plaintiff exhausted administrative remedies that were available to him on the issue of medical treatment" because he filed a post-injury grievance on December 1, 1999. However, the court found "no indication that Plaintiff initiated or exhausted administrative procedures" with respect to his dangerous conditions of confinement claims. Applying a "total exhaustion" rule, the district court held that because Ross did not exhaust all of the claims he seeks to bring in federal court, the PLRA requires that his entire action be dismissed without prejudice.

We AFFIRM, but for reasons different than those relied upon by the district court. We conclude that Ross did exhaust his dangerous conditions claims by lodging a Pre-Grievance Resolution Form. Because prison officials resolved Ross' complaint in his favor and there was apparently no other administrative relief available, Ross was not required to follow up with a formal grievance. However, we conclude that Ross failed to exhaust his medical treatment claims because most of the conduct he now complains of took place after he filed the grievance alleging a lack of medical treatment. Accordingly, that conduct was never brought to the attention of prison officials through the grievance process. Since we agree with the district court that the total exhaustion rule applies to suits subject to the PLRA's exhaustion requirement, we hold that the district court properly dismissed Ross' complaint in its entirety without prejudice.

ANALYSIS

I. The PLRA's Exhaustion Requirement

The PLRA provides 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). The purpose of this exhaustion requirement is to reduce the quantity and improve the quality of prisoner suits. Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). It is designed to achieve this purpose by 1) allowing prison officials an opportunity to satisfy the inmate's complaint, thus potentially obviating the need for litigation; 2) filtering out some frivolous claims; and 3) creating an administrative record that facilitates review of cases that are ultimately brought to court. Id. at 525, 122 S.Ct. 983.

This requirement applies fully when the plaintiff is a federal or state inmate held in a privately operated facility. See Jernigan v. Stuchell, 304 F.3d 1030, 1033 (10th Cir.2002) (approving dismissal of claims against an apparently privately operated prison under the PLRA, without explicitly discussing this issue). As noted above, the PLRA prohibits prisoners in "any jail, prison, or other correctional facility" from filing suit under federal law until administrative remedies are exhausted. 42 U.S.C. § 1997e(a) (emphasis added). The statute defines a "prisoner" as "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 42 U.S.C. § 1997e(h) (emphasis added). Nothing in the language or policy of the PLRA excuses prisoners in privately operated institutions from exhausting available administrative remedies.

In the instant case, CSC's grievance procedures first required inmates to "fill out a written Pre-Grievance Request Form providing as much detail as possible." If prison officials are unable to resolve the prisoner's complaint, the inmate must then file a Formal Grievance within three days of the occurrence. No appeal process was provided.

We now turn to whether Ross exhausted this administrative process with respect to his various Eighth Amendment claims. "In the absence of particularized averments concerning exhaustion showing the nature of the administrative proceeding and its outcome, the action must be dismissed under § 1997e.... [A] prisoner must provide a comprehensible statement of his claim and also either attach copies of administrative proceedings or describe their disposition with specificity." Steele v. Fed. Bureau of Prisons, 355 F.3d 1204 1211 (10th Cir.2003). Our review of a dismissal under the PLRA for failure to exhaust administrative remedies is de novo. Jernigan, 304 F.3d at 1032.⁴

II. Ross' Dangerous Conditions Claims

Ross complains that the MCDC shower was unreasonably dangerous because it was slippery and it did not contain a shower mat. He alleges that he was injured due to this dangerous condition on November 29, 1999. He claims to have exhausted his remedies as to his dangerous conditions claims by filing a Pre-Grievance Request Form on December 6, 1999. In response, prison officials moved a shower mat into the shower in which Ross had fallen. We agree that Ross sufficiently exhausted his administrative remedies as to these claims.⁵

A. Timeliness

We note that the federal Courts of Appeals are divided over whether an untimely grievance is sufficient to exhaust a prisoner's administrative remedies under the PLRA. The Sixth Circuit has deemed an untimely grievance sufficient, reasoning that "if the state forgoes an opportunity to decide matters internally whether for internal time constraints or any other reason, the PLRA has nonetheless served its purpose, and the prisoner may proceed to federal court." Thomas v. Woolum, 337 F.3d 720,...