W.D. Oklahoma, D.C. No. 5:12-CV-00330-HE
Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.
ORDER AND JUDGMENT [*]
Stephen H. Anderson, Circuit Judge
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Plaintiff and appellant, Ezekiel Davis, a state prisoner appearing pro se, appeals an order of the district court in favor of defendants, a number of employees of the Oklahoma Department of Corrections ("ODOC"), in this 42 U.S.C. § 1983 action. For the following reasons, we affirm that order.
Mr. Davis, currently an inmate at the Cimarron Correctional Facility ("CCF") serving a life sentence for a first degree murder conviction, was incarcerated at the Oklahoma State Reformatory ("OSR") during the time relevant to this action. While at OSR, Mr. Davis was apparently forcibly removed from the law library on February 14, 2012, for engaging in disruptive behavior. He did not sustain any injuries nor did he file any grievance. This incident, however, appears to form the core of the broader allegations detailed below.
Claiming that the defendants, ODOC employees, were violating his constitutional rights, he filed the instant 42 U.S.C. § 1983 action. His complaint averred that the defendants denied him access to the courts by interfering with his law library access and with his legal mail, using excessive force when removing him from the law library on February 14, 2012, wrongly subjecting him to grievance restrictions and otherwise conspiring to violate his constitutional rights. He also claimed retaliation by at least defendants Mr. Bear and Ms. Bethea, on the ground that he (Mr. Davis) had previously sought a restraining order against Mr. Bear and on the basis of claimed correspondence with other defendants concerning a "threat." Mr. Davis sought compensatory and punitive damages.
Defendants Blevins, Barber, Bethea, Duty, Hendrix, McCollum and Tate filed a motion to dismiss/motion for summary judgment arguing, inter alia, failure to state a claim, failure to exhaust, and Eleventh Amendment immunity. The matter was referred to a magistrate judge, who issued a Report & Recommendation, recommending the grant of judgment to the defendants. Mr. Davis filed objections to the report and recommendation, and sought leave to amend his complaint. The district court denied permission to amend and adopted the report and recommendation. The court accordingly granted defendants' motion for summary judgment as to some claims (counts one and two) because Mr. Davis had failed to properly exhaust his administrative remedies. The court dismissed the remaining claims (counts three and four) without prejudice for failure to state a valid claim for relief.
Subsequently, defendant Carl Bear filed a motion to dismiss/motion for summary judgment, asserting substantially the same arguments as the preceding defendants. The district court likewise granted summary judgment to Mr. Bear on counts one and two, based on Mr. Davis's failure to exhaust his administrative remedies, and on the remaining claims for failure to state a valid claim for relief. Mr. Davis has appealed both orders which resulted in a final judgment addressing all claims.
Mr. Davis appeals the grant of summary judgment to the defendants for failure to exhaust his administrative remedies and the dismissal of his remaining claims for failure to state a claim. He also challenges the district court's denial of his motion to amend his complaint on the ground that his motion was untimely.
We review Mr. Davis's challenge to the grant of summary judgment "de novo, applying the same legal standard as the district court." Nielson v. Ketchum, 640 F.3d 1117, 1121 (10th Cir. 2011) (internal quotation marks omitted). "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).
Under the Prisoner Litigation Reform Act ("PLRA"), exhaustion of all available administrative remedies is mandatory, and unexhausted claims cannot be brought in court. Jones v. Bock, 549 U.S. 199, 211 (2007); see also 42 U.S.C. § 1977e(a). "[P]risoners must complete the administrative review process in accordance with the applicable procedural rules . . . defined not by the PLRA, but by the prison grievance process itself." Jones, 549 U.S. ...