                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        SEP 13 2004
                                    TENTH CIRCUIT
                                                                   PATRICK FISHER
                                                                             Clerk

 ROBERT A. JONES,

          Plaintiff - Appellant,
 v.

 TRAVIS SMITH, Deputy Warden,
 Great Plains Correctional Facility,
 Official Capacity; BILLY BEETS,
 DR.; JOANNE RYAN, Chief Medical
                                                       No. 04-6116
 Director of DOC, Official Capacity;
                                                 (D.C. No. CIV-03-397-F)
 JANE DOE, Administrator at Great
                                                       (W.D. Okla.)
 Plains Correctional Facility, Official
 Capacity; McCARTHY, Chronic
 Nurse, Great Plains Correctional
 Facility, Official Capacity; JUSTIN
 DOTY, Case Manager, Great Plains
 Correctional Facility, Official
 Capacity; RONALD J. WARD,

          Defendants - Appellees.


                             ORDER AND JUDGMENT *


Before EBEL, MURPHY and McCONNELL, Circuit Judges.


      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 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Order and Judgment is not binding precedent, except under the doctrines of law of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. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
      Robert A. Jones (“Plaintiff”), a state prisoner appearing pro se and in forma

pauperis, claims that he was improperly treated for his hepatitis-C in prison and

that he was improperly assigned to a food service job that was medically

inappropriate given his neck, foot, and knee problems. He brought these claims

in federal court against employees of the prison itself and employees of the state

department of corrections pursuant to 42 U.S.C. § 1983, the Americans with

Disabilities Act (ADA), 1 and the Rehabilitation Act (RA). 2 Additionally, he

brought a state tort claim for intentional infliction of emotional distress (IIED).

The district court dismissed the counts relating to medical care issues for failure

to exhaust, and dismissed the counts relating to job assignment for failure to state

a claim under the ADA or RA.

      Exercising jurisdiction under 28 U.S.C. § 1291, we now AFFIRM the

dismissal of the federal medical care counts for failure to exhaust, and AFFIRM

the dismissal of the job assignment counts for failure to state a claim under the

ADA or RA. 3 We also AFFIRM the dismissal of the state IIED claim for lack of


      1
          Title II of the ADA is codified at 42 U.S.C. § 12131 et seq.
      2
          The RA is codified at 29 U.S.C. § 794(a).

      On appeal, Plaintiff also raises a Fourteenth Amendment due process
      3

argument seeking restoration of classification levels and good time credits.
                                                                     (continued...)

                                          -2-
supplemental jurisdiction. Finally, we AFFIRM the designation of this dismissal

as a “strike” under 28 U.S.C. § 1915(g).



                                 BACKGROUND

      Plaintiff alleges in his complaint that he has tested positive for hepatitis-C

and that Defendants denied him the FDA-approved treatment of the drugs

Interferon and Ribavirin while in prison. He also alleges that Defendants failed

to provide him with prescribed herbal remedies for his hepatitis-C. Further, he

complains that he was refused a specialized consultation for bone spurs, Achilles

tendinitis, and neck pain, as well as treatment for headaches (all unrelated to his

hepatitis-C). Finally, Plaintiff states that he was improperly assigned to work in

food services because he is physically unable to do the work in light of his neck,

foot, and knee problems, and that Defendant McCarthy refused to give the job

coordinator a copy of a medical restriction memo.

      In Count I, Plaintiff alleges that Defendants’ failure to treat his hepatitis-C

with Interferon and Ribavirin violates his Eighth Amendment right to be free of

cruel and unusual punishment. In Count II, he alleges that the denial of

Interferon, Ribavirin, and prescribed herbal remedies constitutes “outrageous



      (...continued)
      3

Because he specifically amended his complaint to omit this claim, we ignore this
argument.

                                        -3-
conduct” and deliberate indifference in violation of his constitutional rights. In

Count III, he alleges that the denial of Interferon and Ribavirin constitutes

intentional infliction of emotional distress (IIED). In Count IV, Plaintiff claims

that Defendants’ failure to treat him with Interferon and Ribavirin is a violation

of the ADA, and that his assignment to work in food services is a violation of the

ADA and the RA. Finally, in Count V, Plaintiff asserts that Defendants violated

the ADA and the RA by assigning him to medically inappropriate work and by

refusing to accept his medical restriction memo.

      Defendants moved to dismiss all of Plaintiff’s medical care claims (Counts

I-III and part of Count IV) on the basis that Plaintiff has failed to exhaust his

administrative remedies. Defendants also moved to dismiss the job assignment

claims (part of Count IV and all of Count V) for failure to state a claim under the

ADA or RA. Plaintiff also moved for summary judgment. The district court

granted the motions to dismiss, denied the motion for summary judgment as moot,

and designated the entire dismissal as one “strike” or “prior occasion” under 28

U.S.C. § 1915(g). Plaintiff now appeals.




                                          -4-
                                   DISCUSSION

Standard of Review:

      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). We also review de novo the district court’s dismissal for failure to state a

claim under Federal Rule of Civil Procedure 12(b)(6). Sutton v. Utah State Sch.

for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). We apply the same

standard as the district court, accepting as true all well-pleaded allegations in the

complaint 4 and affirming the grant of dismissal only if “it appears beyond doubt

that the plaintiff can prove no set of facts in support of his claim which would

entitle him to relief.” Id. Additionally, we construe a pro se litigant’s pleadings

liberally, but we need not accept conclusory allegations without supporting

factual averments. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).




      4
        Much of Plaintiffs’ appellate brief is devoted to arguing that the district
court improperly resolved factual disputes. We reject these arguments because
the district court properly assumed the truth of the allegations in the complaint.
Once the court granted the motion to dismiss all of the counts, it correctly
recognized that Plaintiff’s summary judgment motion was moot.

                                         -5-
Analysis:

I.    Dismissal of federal medical care claims for failure to exhaust (Counts
      I, II, and part of IV)

      Under the Prison Litigation Reform Act (PLRA), a prisoner who files a

civil action challenging the conditions of his confinement must first exhaust

administrative remedies:

      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). This mandatory exhaustion requirement must be strictly

observed “regardless of the relief offered through administrative procedures.”

Booth v. Churner, 532 U.S. 731, 741 (2001). This requirement “applies to all

inmate suits about prison life, whether [those suits] involve general circumstances

or particular episodes, and whether [those suits] allege excessive force or some

other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). The plain language of

§ 1997e(a) requires prisoner actions under “any” federal law to meet the

exhaustion requirement, and we thus decline Plaintiff’s invitation to exempt ADA

suits. 5 See Jones v. Smith, 266 F.3d 399, 400 (6th Cir. 2001) (applying PLRA


      5
         A couple of Plaintiff’s supporting citations are inapposite. For example,
Finley v. Giacobbe dealt with the lack of an exhaustion requirement in the ADA
itself, not the lack of an exhaustion requirement under the PLRA for prisoners’
suits under the ADA. 827 F. Supp. 215, 219 n.3 (S.D.N.Y. 1993). And, Beckford
                                                                        (continued...)

                                        -6-
exhaustion requirement to prisoner’s ADA action); Carrasquillo v. New York, –

F. Supp. 2d –, 2004 WL 1555223 (S.D.N.Y. 2004) (stating that Congress intended

§ 1997e(a) to apply to all federal suits, including ADA suits). But see Parkinson

v. Goord, 116 F. Supp. 2d 390, 398-99 (W.D.N.Y. 2000) (finding that the PLRA

exhaustion requirement did not apply because Title II of the ADA itself had no

exhaustion requirement).

      In the instant case, Plaintiff has provided no evidence showing

administrative exhaustion of his federal medical care claims, nor does his opening

brief even contest the district court’s finding on this point. 6 We thus AFFIRM the

district court’s dismissal of Counts I, II, and part of IV for failure to exhaust

under the PLRA. Although a dismissal for failure to exhaust is usually without

prejudice, we have stated that it can constitute a strike under § 1915(g), see Steele

v. Federal Bureau of Prisons, 355 F.3d 1204, 1213 (10th Cir. 2003), and we thus

AFFIRM the district court’s designation of this dismissal as a “strike.” 7


      5
        (...continued)
v. Irvin, has nothing to do with the exhaustion requirement of the PLRA. 60 F.
Supp. 2d 85, 88 (W.D.N.Y. 1999)
      6
        In his reply brief, Plaintiff mentions that he filed a grievance with a
different prison at a later time, complaining that others received the medications
he needed but did not receive. However, he does not show how this is relevant to
the allegations regarding the time period and prison discussed in his current
complaint, nor does he provide a copy of this grievance.
      7
          Plaintiff argues on appeal that he should not receive a strike under
                                                                          (continued...)

                                           -7-
II.   Dismissal of job assignment claims for failure to state a claim under
      the ADA and RA (part of Count IV and all of Count V)

      The government concedes that Plaintiff exhausted his claims regarding the

allegedly improper job assignment to food services (part of Count IV and all of

Count V), and the district court’s holding as to that point stands. We thus review

the district court’s decision to dismiss these counts for failure to state a claim

under the ADA and RA, and ultimately agree with the district court.

      Title II of the ADA prohibits discrimination based on disability in the

availability of services, programs, or activities of a public entity:

      Subject to the provisions of this subchapter, no qualified individual
      with a disability shall, by reason of such disability, be excluded from
      participation in or be denied the benefits of the services, programs, or
      activities of a public entity or be subjected to discrimination by any
      such entity.

42 U.S.C. § 12132. This section is applicable to state prisons. Pennsylvania

Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998) (“State prisons fall squarely


      7
        (...continued)
§ 1915(g) because he meets that statute’s “imminent danger” exception.
However, Plaintiff misunderstands this exception, as it only applies when a
prisoner has reached three strikes, but desires to file suit in forma pauperis for a
fourth time because he is in “imminent danger of serious physical injury.” 28
U.S.C. § 1915(g). This exception is irrelevant to the instant case, as this is
Plaintiff’s first strike.
       Plaintiff is also reminded that he will not be precluded from filing suit after
accruing three strikes; he will only be required to pre-pay filing fees before doing
so (unless he can then meet the “imminent danger” exception).

                                         -8-
within the statutory definition of ‘public entity,’ which includes ‘any department,

agency, special purpose district, or other instrumentality of a State or States or

local government.”). The RA states in relevant part:

      No otherwise qualified individual with a disability in the United
      States, as defined in section 705(20) of this title, shall, solely by
      reason of her or his disability, be excluded from the participation in,
      be denied the benefits of, or be subjected to discrimination under
      any program or activity receiving Federal financial assistance or under
      any program or activity conducted by any Executive agency or by the
      United States Postal Service.

29 U.S.C. § 794(a).

      Plaintiff has failed to state a claim under either of these statutes because he

does not claim that his job assignment to medically inappropriate work was done

because of his disability. Rather, his complaint simply states that Defendants

assigned him to work that he was physically unable to perform. It does not

provide facts to support discrimination, nor does it even state that the allegedly

improper job assignment was made because of his disability. 8 This assignment

could have been the result of incompetence or personal spite or any other number

of reasons, according to Plaintiff’s complaint. Plaintiff has thus failed to state a

disability discrimination claim under the ADA or RA.


      8
       In Count IV, Plaintiff’s complaint does at least state that he was
discriminated against because of his hepatitis-C. However, that statement goes
only to the unexhausted medical care claims, not the job assignment claims,
because he alleges that the job assignment was improper because of his neck,
knee, and foot problems that were unrelated to his hepatitis-C.

                                         -9-
      We also decline to construe Plaintiff’s complaint as an attempt to state a

“failure to accommodate” claim under the ADA or RA, as his complaint does not

allege that he has been precluded from participating in the work services program

in a different (more medically appropriate) job or from participating in the food

services job with help or accommodation. Rather, he simply alleges that it was

physically impossible for him to do the food services job. He does not allege that

he requested accommodation from the prison and did not receive it. Finally,

Plaintiff’s requested relief is not accommodation or a different job, but removal

of the “refusal to work” designation from his record and the alleviation of other

consequences that flowed from his refusal to work. We thus agree with the

district court that Plaintiff has failed to state a cognizable claim under either the

ADA or the RA.

      On appeal, Plaintiff’s main argument against the dismissal of his job

assignment claims is that they constitute an Eighth Amendment violation. It is

true that Plaintiff may have been able to state a claim under the Eighth

Amendment for the prison forcing him to do medically inappropriate work. See,

e.g., Williams v. Norris, 148 F.3d 983, 986-87 (8th Cir. 1998); Toombs v. Hicks,

773 F.2d 995, 997 (8th Cir. 1985); Farinaro v. Coughlin, 642 F. Supp. 276, 279

(S.D.N.Y. 1986). However, Plaintiff’s complaint does not allege an Eighth




                                         - 10 -
Amendment violation regarding the allegedly improper job assignment, but

alleges solely ADA and RA violations.

       Accordingly, we AFFIRM the district court’s dismissal for failure to state a

claim under the ADA and RA, and AFFIRM the designation of a “strike” under

§ 1915(g) (requiring strike where in forma pauperis complaint dismissed for

failure to state a claim).



III.   Dismissal of state IIED claim (Count III)

       Because we have affirmed the dismissal of all of Plaintiff’s federal claims,

we decline to exercise supplemental jurisdiction under 28 U.S.C. § 1367 and thus

dismiss this state claim for lack of subject matter jurisdiction. Accordingly, we

AFFIRM the dismissal of Count III.



                                  CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s dismissal of

Plaintiff’s federal medical care claims (Counts I, II, and part of IV) for failure to

exhaust; we AFFIRM the district court’s dismissal of Plaintiff’s job assignment

claims (part of Count IV and all of Count V) for failure to state a claim under the

ADA and RA; we AFFIRM the dismissal of Plaintiff’s state law IIED claim

(Count III) on the ground that we lack subject matter jurisdiction; and we


                                        - 11 -
AFFIRM the district court’s designation of this dismissal as one “strike” under

§ 1915(g).

      Additionally, we GRANT Plaintiff’s in forma pauperis motion to pay the

filing fee in partial payments and remind him of his obligation to do so.



                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




                                        - 12 -
