                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      July 27, 2006
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 AN THO NY RA Y M AR TINEZ,

               Plaintiff-Appellant,                     No. 05-1269
          v.                                        District of Colorado
 DAVID O. M ARTINEZ, individually              (D.C. No. 05-CV-00171-ZLW )
 and in his official capacity as a Denver
 D eputy Sheriff; SG T. SU LLIV AN,
 individually and in his official
 capacity as a Denver Deputy Sheriff;
 SGT. ROM ERO, individually and in
 his official capacity as a Denver
 Deputy Sheriff,

               Defendants-Appellees.



                            OR D ER AND JUDGM ENT *


Before M U RPH Y, SEYM OU R, and M cCO NNELL, Circuit Judges.




      *
        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). This case is
therefore 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
      Anthony M artinez is a state prisoner. He brought a pro se complaint

alleging that he was assaulted by a guard and forced to occupy a filthy cell while

at the Denver County Jail. The district court dismissed M r. M artinez’s claims

without prejudice because they might imply the invalidity of a criminal conviction

and because of a failure to plead exhaustion of administrative remedies.

Although we have no occasion to reach the merits of his claims, because of our

duty not to read the pleadings of a pro se litigant hypercritically, we AFFIRM in

part, REV ER SE in part, and R EM AND for further proceedings. 2

      M r. M artinez brought three claims, all, apparently, under 42 U.S.C. § 1983

and all related to his time in the Denver County Jail. In the first, he alleged that

Deputy Sheriff David O. M artinez assaulted him. The magistrate judge and the

district court read this as an allegation of assault on two occasions, M ay 8 and

M ay 15, 2004. M r. M artinez (the plaintiff) was himself convicted of assaulting

Deputy Sheriff M artinez on M ay 15. In his second claim, M r. M artinez alleged

that Sgt. Sullivan refused to transfer him to a unit away from Deputy Sheriff

M artinez. In his third claim, he alleged that from M ay 15 until M ay 19, 2004,

and from August 19 until at least September 21, 2004, Sgt. Romero forced him to

occupy a cell with blood and feces and would not let him clean the cell, shower,

      2
        It is said that you catch more flies w ith honey than with vinegar, and M r.
M artinez seems to have taken this saying to heart. Affixed to Exhibit 12 of his
federal complaint is the top of a container of grape jelly. Grateful as we are that
M r. M artinez submitted jelly rather than vinegar, we are unsw ayed by this
evidence and consider only the more usual submissions.

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make telephone calls, or file grievances. A magistrate judge ordered M r.

M artinez to show cause why his claims should not be dismissed, and the district

court then dismissed all three claims without prejudice. The first two claims were

dismissed pursuant to Heck v. Humphrey, 512 U.S. 477, 487 (1994), on the

ground that they could imply the invalidity of M r. M artinez’s conviction from the

M ay 15 altercation. The third claim was dismissed for failure to exhaust

administrative remedies.

      The district court dismissed the first two claims because it concluded that

the assaults on M ay 8 and M ay 15 had an “interlocking relationship.” Order 2.

In other words, because M r. M artinez w as “attempting to establish that he was a

victim of Defendant M artinez’s continuing pattern to assault inmates,” the suit

could imply that M r. M artinez’s own assault conviction was invalid. Id. In his

complaint, however, M r. M artinez did not allege a pattern of assault. Although

he did mention the M ay 15 altercation, he did not make any legal claim based on

it. Under the heading “Nature of the Case,” M r. M artinez said:

      W hile I w as on writ to D enver County Jail I was assaulted by Deputy
      David O. M artinez on M ay 8 th 2004.

      I told supervi[so]r of Unit 22 Sgt. Sullivan abo[u]t the assault & he
      did not remove me from this unit & on M ay 15 th I was again in a
      combat situation with Deputy M artinez.

Complaint 3. M r. M artinez’s first claim, under the heading “A ssault,” was a

description of the M ay 8 incident and did not mention the M ay 15 incident. His



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second claim, under the heading “Deliberate Indifference,” described Sgt.

Sullivan’s unwillingness to move him to a different unit. At the end of the claim,

M r. M artinez did mention the M ay 15 incident:

      [Sgt. Sullivan] refused to move me from [building] 22 on M ay 9 th
      2004 & on M ay 15 th 2004. I was in a combat with Deputy David O.
      M artinez & I was criminally charged with assault.

      If Sgt. Sullivan would have moved me like I beg[g]ed Deputy David
      O . M artinez & I w ould not have had contact on M ay 15 th 2004 & I
      would not have got charged with [third-degree] assault on a police
      officer for protecting myself.

Complaint 5. W e cannot agree with the district court that M r. M artinez was

alleging assault on two occasions or that these occasions are “interlocking

incidents” that require the same legal conclusion. W e express no view on the

merits of the claim, but it is perfectly conceivable that a prisoner and a guard may

have two altercations, separated by a week, for one of which the prisoner is

properly convicted of assault and for the other of which the guard is properly

subjected to tort liability. Because M r. M artinez is bringing a claim for assault on

M ay 8 and for the subsequent failure to transfer him, not for the M ay 15 incident

for which he was himself convicted of assault, he does not imply the invalidity of

his conviction. Heck v. Humphrey is therefore no bar to his first two claims.

      The district court dismissed the third claim because M r. M artinez had not

met his burden of pleading exhaustion of administrative remedies. To meet his

pleading requirement, M r. M artinez must “attach a copy of the applicable



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administrative dispositions to the complaint, or, in the absence of written

documentation, describe with specificity the administrative proceeding and its

outcome.” Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1210 (10th Cir.

2003) (alterations and quotation marks omitted). In his complaint, M r. M artinez

described his prison conditions at two different times, M ay 2004 and August to

September 2004. On appeal, he raises only his prison conditions in M ay 2004.

According to the district court, M r. M artinez failed to plead exhaustion of

remedies for his prison conditions claim for M ay 2004:

      [M r. M artinez] failed to state with specificity how he had exhausted
      or attempted to exhaust Claim Three or, in the alternative, to attach
      copies of administrative proceedings indicating how he exhausted or
      attempted to exhaust his administrative remedies.

Order 3. 3 In his complaint and his response to the order to show cause, M r.

M artinez said that he filed grievances at the Denver County Jail, that he made six

or seven attempts to contact the Denver County Jail once he was transferred to

another correctional facility, that he received no response, that it was Sgt. Romero

who refused to answer the grievances, and that at least one of the complaints after

his transfer w as sent to the Denver County Jail as legal mail, all w ithout response.

M r. M artinez’s general allegations that he was not listened to on a number of

occasions do not “describe with specificity the administrative proceeding and its



      3
       M r. M artinez did attach to his complaint a grievance from August 25,
2004, but as noted, M r. M artinez appeals only with respect to his prison
conditions in M ay 2004.

                                          -5-
outcome.” Steele, 355 F.3d at 1210 (quotation marks omitted). M oreover, even

after being given an order to show cause, he failed to explain either the substance

or the form of his complaints. W e therefore affirm the dismissal of M r.

M artinez’s prison conditions claim with respect to M ay 2004, because M r.

M artinez has failed to plead exhaustion of administrative remedies.

      The judgment of the United States District Court for the District of

Colorado is therefore AFFIRM ED in part and REVERSED in part and the case

is REM AND ED for further proceedings not inconsistent w ith this opinion.

Appellant’s motion to pay the filing fee in partial payments is GR ANTED . He is

reminded that he is obligated to continue making partial payments toward the

balance of his assessed fees and costs until they are paid in full.



                                               Entered for the Court,

                                               M ichael W . M cConnell
                                               Circuit Judge




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