263 Fed. Appx. 723, *

WESLEY I. PURKEY, Plaintiff-Appellant, v. CCA DETENTION CENTER; FREDRICK LAWRENCE; ANDRE FORD; MARTETO WILLINGHAM; JACQUELYN BANKS; KENNETH DAUGHERTY; LANCE ADKINS; and MICHAEL SULLIVAN, Defendants-Appellees.

No. 06-3389

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

263 Fed. Appx. 723


February 5, 2008, Filed

[*724] ORDER AND JUDGMENT *

FOOTNOTES

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.


Defendant Corrections Corporation of America Click for Enhanced Coverage Linking Searches(CCA) is a private Maryland corporation under contract with the United States Marshals Service to detain and house federal prisoners. Plaintiff Wesley Purkey, a federal prisoner formerly held at CCA's facility in Leavenworth, Kansas, instituted this suit in federal court against CCA and various CCA employees. Purkey's Amended "Petition" (Complaint) states multiple Bivens claims for alleged violations of his constitutional rights, as well as one [**2] pendant state law tort claim.

In the district court, Defendants filed a Motion to Dismiss. The district court concluded Purkey failed to prove he exhausted available administrative remedies in regard to Count VI of his Amended Complaint, which states a claim for excessive force. The Prison Litigation Reform Act (PLRA) requires that prisoners exhaust available administrative remedies before they initiate lawsuits related to the conditions of their confinement. See Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). Consequently, the district court granted Defendants' motion and dismissed Purkey's entire Amended Complaint without prejudice.

On appeal, Purkey argues the district court erred in: (1) placing the burden of [*725] proving he exhausted available administrative remedies on him; (2) ruling he failed to exhaust available administrative remedies in regard to Count VI, and (3) dismissing his entire Amended Complaint without prejudice. We have jurisdiction under 28 U.S.C. § 1291. We vacate and remand in order to give the district court an opportunity to reconsider its opinion in light of the Supreme Court's decision in Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2006), and resulting changes in [**3] our Court's PLRA precedent.

I.

The PLRA states that: "No 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 PLRA's requirement that an inmate exhaust all available administrative remedies before initiating suit is "mandatory," whether or not such remedies "meet federal standards." Woodford v. Ngo, 548 U.S. 81, 126 S. Ct. 2378, 2382, 165 L. Ed. 2d 368 (2006). This "exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532, 122 S. Ct. 983, 152 L. Ed. 2d 12 (2002).

Prior to the Supreme Court's ruling in Jones, we issued our opinions in Steele v. Federal Bureau of Prisons, 355 F.3d 1204 (10th Cir. 2003), and Ross v. County of Bernalillo, 365 F.3d 1181 (10th Cir. 2004). Steele held that prisoners have the burden of pleading the exhaustion of available administrative remedies under the PLRA and that failure to properly plead exhaustion of such remedies [**4] amounts to failure to state a claim upon which relief may be granted. See 355 F.3d at 1209-10. In Ross, we held that the PLRA incorporates a total exhaustion requirement. See 365 F.3d at 1189. Thus, we held an inmate's entire case must be dismissed if it contains a single unexhausted claim. See id.

In this case, the district court faithfully applied Steele in placing the burden on Purkey to plead exhaustion of available administrative remedies. The district court also followed our ruling in Ross in dismissing Purkey's entire Amended Complaint once it concluded Purkey had not exhausted available administrative remedies in regards to Count VI. As we have recognized, however, "Jones overrules [both] Steele and Ross." Freeman v. Watkins, 479 F.3d 1257, 1260 (10th Cir. 2007).

In Jones, the Supreme Court addressed several procedural requirements adopted by lower courts, requiring a prisoner, under the PLRA, to "allege and demonstrate exhaustion in his compliant . . . and requir[ing] courts to dismiss the entire action if the prisoner fails to satisfy the exhaustion requirement as to any single claim in his compliant," 127 S. Ct. at 914. The Supreme Court's holding in Jones that "failure to [**5] exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their complaints" clearly abrogated our holding in Steele. Id. at 921. Similarly, the Supreme Court's conclusion in Jones that the PLRA does not alter the legal norm by which "[o]nly" unexhausted (or "bad claims") in a complaint "are dismissed" -- rather than "the complaint as a whole" -- abrogates our holding in Ross. Id. at 924.

Post-Jones, we stated that prisoners "no longer [have] the duty of pleading exhaustion." Freeman, 479 F.3d at 1260. "As Jones makes clear, exhaustion is an affirmative defense and defendants now have the burden of asserting the failure to exhaust in their respons[ive] pleadings." Id. Relying on Jones, we also recently held [*726] that "the burden of proof for the exhaustion of administrative remedies in a suit governed by the PLRA lies with the defendant." Roberts v. Barreras, 484 F.3d 1236, 1241 (10th Cir. 2007). Further, we have recognized that "under the newly announced rules of Jones," the failure to exhaust available administrative remedies "on one claim does not warrant dismissal of the entire action." Id. at 1244.

II.

The district [**6] court did not have the opportunity to apply Jones, or our post-Jones case law, when it ruled on Defendants' motion. As a result, and through no fault of its own, the district court's treatment of Defendants' Motion to Dismiss was in error. See Peterson v. Shearson/American Express, Inc., 849 F.2d 464, 466 (10th Cir. 1988) ("The general rule is that[,] absent injustice, an appellate court should apply the case law in effect at the time it renders its decision."). A remand is necessary in order to give the district court an opportunity to apply the new PLRA framework -- as laid down by Jones and our post-Jones precedents -- to the present case.

Defendants raised the issue of exhaustion in regard to Count VI in their memorandum in support of their Motion to Dismiss. As such, Defendants satisfied their post-Jones "burden of asserting the failure to exhaust in their respons[ive] pleadings." Freeman, 479 F.3d at 1260. On remand, however, Defendants also bear the burden of proving Purkey failed to exhaust available administrative remedies in regard to Count VI. See Roberts, 484 F.3d at 1241. Thus, Defendants must necessarily prove that: (1) administrative remedies were, in fact, available [**7] to Purkey after he left CCA's custody, and (2) Purkey failed to exhaust these remedies. 1 If the district court concludes administrative remedies were, in fact, available to Purkey and that Purkey failed to exhaust these remedies, only Purkey's unexhausted claims may be dismissed. See Freeman, 479 F.3d at 1260 (stating that "'if a complaint contains both good and bad claims, . . . court[s] proceed[] with the good and leave[] the bad'" (quoting Jones, 127 S. Ct. at 924)).

FOOTNOTES

1 At this juncture, we are unsure whether administrative remedies were, in fact, available to Purkey after he left CCA's custody or whether Purkey failed to exhaust the administrative remedies actually available to him. CCA's grievance policy merely states that: "If a grievance is submitted for review and the grievant is released from custody, efforts to resolve the grievance will normally continue." See Policy 14-5.5(I)(3) (emphasis added). This section hardly states an unequivocal rule. Further, nothing in § 14-5.5(I)(3) clearly indicates that prisoners released from CCA's custody are required to comply with all other sections of CCA's grievance policy, including those sections pertaining to appeals.


REVERSED AND REMANDED.

Entered [**8] for the Court, Bobby R. Baldock

United States Circuit Judge
_________________________________________________________________________

WESLEY J. PURKEY, Plaintiff, v. CORRECTIONS CORPORATION OF AMERICA, et al., Defendants.

CIVIL ACTION No. 03-3157-CM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

August 19, 2008, Decided
August 19, 2008, Filed

MEMORANDUM AND ORDER

Plaintiff [*2] Wesley J. Purkey, a prison inmate, filed this civil rights lawsuit against Corrections Corporation of America Click for Enhanced Coverage Linking Searches("CCA") and several of its officers and officials. CCA has a contract with the United States Marshal Service to detain and house federal prisoners. Plaintiff, who is a federal prisoner, was detained at CCA during the time period relevant to this case. Plaintiff seeks relief for violations of his federally-protected rights. Specifically, he claims that defendants destroyed his legal papers (Count I); prohibited him from helping other inmates file grievances (Count II); used unsafe procedures that caused plaintiff to fall in the shower (Count IV); retaliated against him for filing grievances (Count V); and used excessive force (Count VI).

I. PROCEDURAL BACKGROUND

In September 2006, this court held that under existing Tenth Circuit precedent, plaintiff failed to meet his burden of showing that he had administratively exhausted one of his claims, the claim for excessive force. See Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1209-10 (10th Cir. 2004). At that time, Tenth Circuit law was that the Prison Litigation Reform Act ("PLRA") incorporated a total exhaustion requirement. [*3] See Ross v. County of Bernalillo, 365 F.3d 1181, 1190 (10th Cir. 2004). The court therefore dismissed plaintiff's entire case after giving plaintiff the opportunity to voluntarily dismiss the unexhausted claim. See Dawson v. Taylor, 128 F. App'x 677, 679 (10th Cir. 2005). Both Steele and Ross have since been overruled by the Supreme Court's decision in Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007). See Freeman v. Watkins, 479 F.3d 1257, 1260 (10th Cir. 2007). The Tenth Circuit therefore reversed and remanded this court's decision based on Jones.

The appellate court remanded the case for this court "to apply the new PLRA framework--as laid down by Jones and our post-Jones precedents--to the present case." The Tenth Circuit specifically directed that "[d]efendants must necessarily prove that: (1) administrative remedies were, in fact, available to Purkey after he left CCA's custody, and (2) Purkey failed to exhaust these remedies." In a footnote, the Tenth Circuit also discussed the issue of whether plaintiff had available administrative remedies that he failed to exhaust:

At this juncture, we are unsure whether administrative remedies were, in fact, available to Purkey after he left CCA's custody [*4] or whether Purkey failed to exhaust the administrative remedies actually available to him. CCA's grievance policy merely states that: "If a grievance is submitted for review and the grievant is released from custody, efforts to resolve the grievance will normally continue." See Policy

14-5.5(I)(3) (emphasis added). This section hardly states an unequivocal rule. Further, nothing in § 14-5.5(I)(3) clearly indicates that prisoners released from CCA's custody are required to comply with all other sections of CCA's grievance policy, including those sections pertaining to appeals.

With the Tenth Circuit's mandate in mind, the court now considers whether plaintiff had administrative remedies available after he left CCA, and, if so, whether he failed to exhaust those remedies with respect to his excessive force claim. Defendants have filed a Motion for Summary Judgment as to Count VI of Plaintiff's Amended Complaint (Doc. 107) on this limited issue.

II. STANDARDS FOR JUDGMENT

Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In applying this [*5] standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)).

III. FACTUAL BACKGROUND 1

FOOTNOTES

1 The court construes the facts in the light most favorable to plaintiff as the non-moving party pursuant to Fed. R. Civ. P. 56. The court has included only those facts which are relevant, material, and properly supported by the record.


While plaintiff was an inmate at CCA, he filed a grievance alleging that officers used excessive force in handling him. After he filed the grievance, but before CCA had addressed it, plaintiff was transferred to USP-Leavenworth. CCA then denied plaintiff's grievance and sent the denial to plaintiff at USP-Leavenworth. Plaintiff did not appeal denial of the grievance.

CCA's grievance policy provides that an inmate/resident must file a grievance within seven days of an incident. Within fifteen days, the Facility Grievance Officer will render a decision. Within five days of receiving the decision, the inmate/resident "is to submit any appeal to the Warden/Administrator [*6] or designee." The Warden/Administrator will then "render a written decision on the appeal within fifteen . . . days of receipt from the inmate/resident."

CCA's policy also contemplates that "grievants" may continue the process after they leave the facility:

If a grievance is submitted for review and the grievant is released from custody, efforts to resolve the grievance will normally continue. It is the grievant's responsibility to notify the Facility Grievance Officer of the pending release and to provide a forwarding address and any other pertinent information.

The policy defines a "grievant" as an "inmate/resident," and defines an "inmate/resident" as one who is "housed in a CCA facility."

Defendants have presented an affidavit signed by Rhonda Allen, which states, "As the Grievance Officer at CCA, I would continue to process grievance appeals submitted by prisoners after they had left CCA according to CCA Corporate and Facility Policy 14-5, unless the appeal had been resolved." Plaintiff has presented unverified, unauthenticated evidence showing that he submitted grievances in May 2002 that were not processed because plaintiff had been released from CCA. The court need not resolve [*7] which is true because the actual practice of CCA is irrelevant to the court's decision.

IV. DISCUSSION

At best, CCA's written policy is ambiguous as to whether a former inmate/resident who has filed a grievance is required or allowed to continue the procedure after leaving the facility. 2 The policy applies to inmates/residents, and once someone is no longer in the custody of CCA, he is neither an inmate nor a resident. On its face, CCA's policy does not apply to former inmates/residents. And although the policy states that "normally" efforts to resolve the grievance will continue, it is not clear that inmates/residents are required or even allowed to continue the process in all instances. In light of CCA's ambiguous policy and the contractual rule of construction against the drafter, see Time Warner Entm't Co. v. Everest Midwest Licensee, L.L.C., 381 F.3d 1039, 1045 (10th Cir. 2004), the court determines that defendants have not met their burden of showing that plaintiff had administrative remedies "available" after he left CCA.

FOOTNOTES

2 Whether CCA always processed grievances after former inmates left the custody of CCA does not matter if CCA did not unambiguously communicate to its inmates [*8] that the grievance procedures and requirements remained in place after an inmate left its custody. CCA has not presented any authority to the court for the proposition that an unwritten practice can trump a written policy. CCA bears the burden of showing that it is entitled to summary judgment.


In reaching this decision, the court has not considered plaintiff's surreply that the court conditionally allowed plaintiff to file. See EEOC v. Int'l Paper Co., No. 91-2017-L, 1992 U.S. Dist. LEXIS 18895, 1992 WL 370850, at *10 (D. Kan. Oct. 28, 1992). The surreply was unnecessary, as defendants did not raise new issues in their reply brief. On the other hand, the court excuses plaintiff's failure to strictly comply with the District of Kansas Local Rules in its response brief. In its discretion and in the interest of justice, the court will not deem all of the facts in defendants' memorandum in support of their motion admitted. But the court advises plaintiff that he should comply with all applicable rules in future filings.

IT IS THEREFORE ORDERED that defendants' Motion for Summary Judgment as to Count VI of Plaintiff's Amended Complaint (Doc. 107) is denied.

Dated this 19th day of August 2008, at Kansas City, Kansas.

/s/ [*9] Carlos Murguia

CARLOS MURGUIA

United States District Judge