Zink v. Quinlan, 91-3003

• Decision Date: 17 April 1991
• Docket Number: No. 91-3003,91-3003
• Citation: 931 F.2d 64
• Parties: Unpublished Disposition NOTICE: Tenth Circuit Rule 36.3 states that unpublished opinions and orders and judgments have no precedential value and shall not be cited except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. David ZINK, Plaintiff-Appellant, v. Michael QUINLAN, Director of BOP, and G.L. Henman, Warden, and John USP Mail Room, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 64

931 F.2d 64

Unpublished Disposition

NOTICE: Tenth Circuit Rule 36.3 states that unpublished opinions and orders and judgments have no precedential value and shall not be cited except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel.

David ZINK, Plaintiff-Appellant, v. Michael QUINLAN, Director of BOP, and G.L. Henman, Warden and John USP Mail Room, Defendants-Appellees.

No. 91-3003.

United States Court of Appeals, Tenth Circuit.

April 17, 1991.

Before MCKAY, SEYMOUR and EBEL, Circuit Judges.

ORDER AND JUDGMENT ^*

EBEL, Circuit Judge.

After examining the briefs, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. Therefore, the case is ordered submitted without oral argument.

Appellant, a federal prisoner in Leavenworth, Kansas, brought this civil rights action under 28 U.S.C. Sec. 1331. Appellant claims that his constitutional rights were violated, and continue to be violated, by the prison's refusal to open "legal mail" in his presence. Thus, appellant brought a motion seeking a temporary restraining order. The district court dismissed the complaint without prejudice on the grounds that appellant had not exhausted his prison administrative remedies. The district court cited two cases that are controlling here. See McCarthy v. Maddigan, 914 F.2d 1411 (10th Cir.1990); Brice v. Day, 604 F.2d 664 (10th Cir.1979), cert. denied, 444 U.S. 1086 (1980). Those cases demonstrated that in this court " 'a broad exhaustion requirement is particularly appropriate in cases involving federal prisoner complaints against prison officials relating to their ... treatment during confinement." McCarthy, 914 F.2d at 1412, quoting, Hessbrook v. Lennon, 777 F.2d 999, 1007 (1985).

We agree with the district court that in most cases "[t]he administrative remedy process is necessary for the proper and effective handling of prisoner complaints and serves as a form of discovery in an attempt to resolve the grievance." Dist.Ct.Order at 1. Additionally, as in McCarthy, 914 F.2d at 1412 (quotations omitted), appellant in this case "does not challenge on appeal the district court's finding that he failed to demonstrate his use of the [available] administrative remedy process;" rather, he states that he should not have "to endure the violations for [the] 70 plus days it takes to exhaust." See Appellant's ...