                                                           FILED
                                               United States Court of Appeals
                  UNITED STATES COURT OF APPEALS       Tenth Circuit

                         FOR THE TENTH CIRCUIT           November 1, 2012

                                                        Elisabeth A. Shumaker
                                                            Clerk of Court
IVETTE FIGUEROA,

           Plaintiff-Appellant,

v.                                               No. 12-6099
                                         (D.C. No. 5:10-CV-00760-M)
OKLAHOMA DEPARTMENT OF                          (W.D. Okla.)
CORRECTIONS; JUSTIN JONES,
Director DOC; MIKE JACKSON, Chief
of Medical Services; JOHN DOE,
Warden, Lexington OK; MILLICENT
NEWTON-EMBRY, Warden, Mabel
Bassett; MIKE MURRAY, Deputy
Warden, Mabel Bassett; MS. IPAYE,
Kitchen Manager; MS. AMUS, Kitchen
Supervisor; DR. MCMASTER, Doctor,
Mabel Bassett; JANE DOE, Inmate Trust
Fund; JANE DOE, Medical Accounts
Payable; MS. HURLEY, Officer,
Isolation Unit; NURSE NUNN, Mable
Bassett; DENNIS COTNER, Medical
Services; MR. HENDRICKSON, Case
Manager; VALETA DUNCAN, SATP
Director; SONI FORT, Records Officer
MBCC; MIKE MURRY, Deputy
Warden; OLA ONAJOBI, Unit Manager;
SHOLA SHOPEYIN, Unit Manager;
WARDEN ERIC FRANKLIN,

           Defendants-Appellees,

and

SHOLA SHOEPEYING; MS.
ANAYOBI, Unit Manager; JANE DOE,
Director SATP,

           Defendants.
                            ORDER AND JUDGMENT*


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.


      Plaintiff Ivette Figueroa, proceeding pro se, appeals from dismissal of her

42 U.S.C. § 1983 prisoner civil rights complaint. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

                                   BACKGROUND

      Ms. Figueroa’s claims arise out of her custody by the Oklahoma Department of

Corrections (ODOC) during the time period 2006 through 2010. She has since

discharged her Oklahoma sentence and was released from ODOC custody on

August 4, 2010. She is currently in the custody of the Arkansas Department of

Corrections. Ms. Figueroa’s amended complaint includes allegations that ODOC

prison officials discriminated against her on account of her sexual preference; denied

her medical treatment, dietary needs, and toiletries; removed money from her trust

account; forced her to climb stairs when unable; opened her mail; and only tolerated

Christian religious activities. She seeks compensatory and punitive damages.
*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. 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.


                                          -2-
        A group of Defendants1 filed a motion to dismiss pursuant to Fed. R. Civ. P.

12(b)(1) and 12(b)(6) for, among other things, Ms. Figueroa’s failure to exhaust her

administrative remedies pursuant to 42 U.S.C. § 1997e(a). In the alternative, Group

1 Defendants moved for summary judgment under Fed. R. Civ. P. 56(b).

Ms. Figueroa also submitted a motion for summary judgment. The magistrate judge

recommended summary judgment against Ms. Figueroa on the issue of exhaustion.

Ms. Figueroa filed a timely objection to the report and recommendation. On

March 30, 2012, the district court conducted a de novo review, adopted the

magistrate judge’s report and recommendation, and granted summary judgment for

Group 1 Defendants on exhaustion grounds. Ms. Figueroa appealed on April 12,

2012.

        Group 2 Defendants, though, had not yet been dismissed from the case. After

conducting an initial review of Ms. Figueroa’s amended complaint pursuant to


1
       Group 1 Defendants include Justin Jones, Director DOC; John Doe, Warden,
Lexington OK (identified as Warden Eric Franklin); Millicent Newton-Embry,
Warden, Mabel Bassett; Mr. Hendrickson, Case Manager; Jane Doe, Inmate Trust
Fund (identified as Soni Fort, Records Officer); Jane Doe, Director SATP (identified
as Valeta Duncan, SATP Director); Mike Murry, Deputy Warden, Mabel Bassett
(spelled Mike Murray in amended complaint); Ola Onajobi, Unit Manager (spelled
Ola Anayobi in amended complaint); and Shola Shopeyin, Unit Manager (spelled
Shola Shopeying in amended complaint).
      Group 2 Defendants include Mike Jackson, Chief of Medical Services;
Ms. Ipaye, Kitchen Manager; Ms. Amus, Kitchen Supervisor; Dr. McMaster, Doctor,
Mabel Bassett; Jane Doe, Medical Accounts Payable; Ms. Hurley, Officer, Isolation
Unit; Nurse Nunn, Mable Bassett (properly identified as Nurse Nelms); and Dennis
Cotner, Medical Services.


                                          -3-
28 U.S.C. §§ 1915 and 1915A, the magistrate judge issued a second report and

recommendation recommending dismissal of Ms. Figueroa’s claims against Group 2

Defendants on the grounds of failure to state a claim upon which relief can be

granted. Ms. Figueroa filed an objection, but it was untimely. On April 16, 2012,

the district court, conducting a de novo review despite the absence of an objection,

adopted the second report and recommendation and dismissed Ms. Figueroa’s claims

against Group 2 Defendants pursuant to §§ 1915 and 1915A. The district court

declined to exercise jurisdiction over Ms. Figueroa’s state-law claims and dismissed

them without prejudice. Also on April 16, 2012, the district court entered a Fed. R.

Civ. P. 58 final judgment dismissing the entire action. Ms. Figueroa filed an

untimely amended notice of appeal on June 14, 2012.

                                    DISCUSSION

      We must first consider our jurisdiction over Ms. Figueroa’s appeal. In general,

a party may not appeal until entry of a final order. See 28 U.S.C. § 1291.

Ms. Figueroa filed her first notice of appeal before the Group 2 Defendants had been

dismissed from the case. This premature notice of appeal may have ripened when the

district court entered its final order disposing of the remaining claims and defendants.

See, e.g., Fed. R. App. P. 4(a)(2); Fields v. Okla. State Penitentiary, 511 F.3d 1109,

1112 (10th Cir. 2007); Copeland ex rel. Copeland v. Toyota Motors Sales U.S.A.,

Inc., 136 F.3d 1249, 1251-52 (10th Cir. 1998). Regardless, Ms. Figueroa filed a

motion seeking leave to appeal in forma pauperis fourteen days after the entry of


                                         -4-
judgment. We treat this application as the functional equivalent of a notice of appeal.

See Fleming v. Evans, 481 F.3d 1249, 1253-54 (10th Cir. 2007) (motion to proceed

on appeal in forma pauperis may serve as the functional equivalent of a notice of

appeal).2 The clear intent of Ms. Figueroa’s filings in this court was to appeal the

district court’s dismissal of her claims against both groups of Defendants. We

therefore have jurisdiction over Ms. Figueroa’s appeal.

      This, however, does not end our analysis. Because Ms. Figueroa failed to

timely file an objection to the second report and recommendation, she may have

waived the right to appeal the district court’s dismissal of Group 2 Defendants under

this circuit’s firm waiver rule. See Key Energy Res. Inc. v. Merrill (In re Key Energy

Res. Inc.), 230 F.3d 1197, 1199-1200 (10th Cir. 2000) (“This court has adopted a

‘firm waiver rule’ which provides that a litigant’s failure to file timely objections to a

magistrate’s report and recommendation waives appellate review of both the factual

and legal determinations.” (brackets and internal quotation marks omitted)).

Ms. Figueroa asserts that she was confused by the multiple report and




2
       Even further, in Ms. Figueroa’s untimely objection to the magistrate’s second
report and recommendation, which she submitted after entry of final judgment,
Ms. Figueroa stated that she “disagree[s] with the court decision, due to various
factors[,] w[h]ich will be explained, and also appeal[s].” Aplt. App. Vol. 1 (part 3)
at 144 (emphasis added). It is appropriate to also construe this submission as the
functional equivalent of a notice of appeal because it provides the notice required by
Fed. R. App. P. 3(c)(1). See Smith v. Barry, 502 U.S. 244, 248 (1992).



                                          -5-
recommendations and she did not understand that she needed to file a second

objection. She also claims she did not receive the correct forms from the court.

      The waiver rule applies to a pro se party unless (1) the party has not been

informed of the time period within which to file objections and the consequences for

failing to do so, or (2) the “interests of justice” require review. Morales-Fernandez

v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005).3 The magistrate judge did inform

Ms. Figueroa of the time period within which to file an objection to the second report

and recommendation. However, we believe the interests of justice require review in

this instance. Ms. Figueroa did make an effort to comply with the magistrate’s

instruction to file an objection, albeit untimely. Furthermore, Ms. Figueroa was

faced with two separate response dates to two separate reports and recommendations

dealing with two sets of defendants—groupings that she had never contemplated. It

is not implausible that a pro se litigant would have been confused concerning her

obligation to file a separate objection to the second report and recommendation.

See id. at 1119-20 (providing several factors to consider in applying the interests of

justice exception, including a plaintiff’s efforts to comply with instructions and the
3
     We do not find that Group 2 Defendants forfeited their claim to waiver by failing
to properly object to Ms. Figueroa’s appeal. See Hicks v. Franklin, 546 F.3d 1279,
1283 n.3 (10th Cir. 2008) (“Because a failure to timely object to a magistrate’s report
is not jurisdictional, the State has forfeited any claim that we should not consider the
appeal because of [the plaintiff’s] failure to timely object.” (internal citation
omitted)). The district court dismissed Group 2 Defendants under its 28 U.S.C.
§ 1915 obligation to first screen an in forma pauperis complaint; therefore, Group 2
Defendants had not yet actively participated in the action and did not have the
opportunity to raise the lack-of-objection issue.


                                          -6-
plausibility of the explanation for noncompliance). In the utmost concern for justice

and in order to ensure that Ms. Figueroa has an opportunity to be heard, we conclude

that the waiver rule should not apply in this case.4

Dismissal of Group 1 Defendants

      “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). Exhaustion of available administrative remedies is mandatory under the

Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). See Booth v. Churner,

532 U.S. 731, 741 (2001). ODOC has adopted standard grievance procedures:

      The ODOC has a four-step process for administrative exhaustion of
      prisoner claims. Initially, a prisoner must seek to resolve any complaint
      by informally raising the matter with an appropriate staff member. If
      the matter is not resolved informally, the prisoner must submit [a
      Request to Staff]. If the matter still remains unresolved, the prisoner
      may file a Grievance Report Form (“grievance”) with the reviewing
      authority, which is usually the prison’s warden. Finally, a prisoner may
      appeal the warden=s decision to the Administrative Reviewing Authority
      (“ARA”). The ruling of the [ARA] . . . is final and [concludes] the
      internal administrative remedy available to the inmate . . . .

Little v. Jones, 607 F.3d 1245, 1249 (10th Cir. 2010) (alterations in original) (internal

quotation marks and citations omitted). Further, “[a]n inmate who begins the

grievance process but does not complete it is barred from pursuing a § 1983 claim.”


4
     The district court’s de novo review of the second report and recommendation,
despite the absence of an objection, does not change the analysis. See United States
v. 2121 East 30th St., 73 F.3d 1057, 1061 (10th Cir. 1996) (“[T]he district court’s
decision to conduct a de novo review, sua sponte, does not warrant lifting the bar of
appellate review under the circumstances presented here.”).


                                          -7-
Jernigan, 304 F.3d at 1032; see also Fields, 511 F.3d at 1112 (“To exhaust

administrative remedies an inmate must properly comply with grievance procedures;

substantial compliance is insufficient.”).

      In her report and recommendation, the magistrate judge extensively outlined

the grievance steps Ms. Figueroa took to resolve her claims against Group 1

Defendants. In short, Ms. Figueroa submitted formal grievances for some of her

claims and failed to submit grievances for other claims. She also failed to complete

the appeals process for those grievances that she did submit.5 Thus, we agree with

the district court that Ms. Figueroa failed to exhaust the available administrative

remedies for her claims against Group 1 Defendants.

      Ms. Figueroa’s claim that ODOC grievance procedures do not apply because at

the time she filed her amended complaint she had discharged her Oklahoma sentence

and was in the custody of the Arkansas Department of Corrections is mistaken. The

PLRA applies to a prisoner “confined in any jail, prison, or other correctional

facility.” 42 U.S.C. § 1997e(a). Further, Ms. Figueroa’s claims relate to her

confinement in ODOC custody, and she filed her original complaint while she was in

ODOC custody. “[I]t is the plaintiff’s status at the time he files suit that determines
5
     Ms. Figueroa submitted some of her grievances after the filing of her complaint
in this action. “[R]esort to a prison grievance process must precede resort to a
court.” Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1207 (10th Cir. 2003)
(alteration in original) (quotation marks and citation omitted), abrogated on other
grounds by Jones v. Bock, 549 U.S. 199 (2007). Further, it appears that
Ms. Figueroa’s grievances, which she submitted in 2010 for claims against her that
occurred in 2006-2008, are untimely under ODOC regulations.


                                             -8-
whether § 1997e(a)’s exhaustion provision applies.” Norton v. City of Marietta,

Okla., 432 F.3d 1145, 1150 (10th Cir. 2005).

Dismissal of Group 2 Defendants

      The district court adopted the magistrate judge’s second recommendation and

dismissed Ms. Figueroa’s claims against Group 2 Defendants pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii) for failure to state a claim. We review de novo an order

dismissing a prisoner’s § 1983 complaint for failure to state a claim under

§§ 1915(e)(2)(B)(ii) and 1915A(b)(1). See McBride v. Deer, 240 F.3d 1287, 1289

(10th Cir. 2001). “If the plaintiff proceeds pro se, the court should construe his

pleadings liberally and hold the pleadings to a less stringent standard than formal

pleadings drafted by lawyers.” Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir.

1996). “However, the broad reading of the plaintiff’s complaint does not relieve the

plaintiff of the burden of alleging sufficient facts on which a recognized legal claim

could be based. . . . [C]onclusory allegations without supporting factual averments

are insufficient to state a claim on which relief can be based.” Id. (alterations and

internal quotation marks omitted).

      Again, the magistrate judge succinctly reviewed and analyzed Ms. Figueroa’s

claims against Group 2 Defendants in the second report and recommendation, and we

agree that Ms. Figueroa has failed to allege sufficient details to state her claims.6


6
   “[A] prison official cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the official knows of
                                                                        (continued)
                                        -9-
      Accordingly, we AFFIRM the judgment of the district court. We also

GRANT Ms. Figueroa’s motions to add-on exhibits and to proceed in forma

pauperis.


                                                   Entered for the Court


                                                   Jerome A. Holmes
                                                   Circuit Judge




and disregards an excessive risk to inmate health or safety; the official must both be
aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.” Farmer v. Brennan,
511 U.S. 825, 837 (1994). As to the temporary lack of toiletries, the Eighth
Amendment is not implicated by mere allegations of discomfort or temporary adverse
conditions posing no risk to a prisoner’s health and safety. See Hudson v. McMillian,
503 U.S. 1, 9 (1992). Further, Ms. Figueroa’s claims for lack of adequate nutrition
and medical care also fail to state the required particularity. See Thompson v.
Gibson, 289 F.3d 1218, 1222 (10th Cir. 2002); Perkins v. Kan. Dep’t of Corr.,
165 F.3d 803, 811 (10th Cir. 1999). Finally, an isolated instance of mail being
opened “without any evidence of improper motive or resulting interference with [the]
right to counsel or to access to the courts” is insufficient to establish a constitutional
violation. See Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990).


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