                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         March 20, 2006
                            FOR THE TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                          Clerk of Court


    ERIC ALLEN ZARSKA,

                Plaintiff-Appellant,

                                                         No. 05-3204
    v.                                            (D.C. No. 04-CV-3319-CM)
                                                           (D. Kan.)
    DONALD R. HIGGINS, COII/SST, in
    his official and private capacity,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before HENRY, McKAY, and MURPHY, Circuit Judges.


         After examining the briefs and 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); 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      This order and judgment is not binding precedent, except under the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.
      Plaintiff-Appellant Eric Allen Zarska, an inmate at the El Dorado

Correctional Facility (EDCF) in Kansas, appeals the dismissal of his pro se

42 U.S.C. § 1983 civil rights complaint. Mr. Zarska alleged that Defendant-

Appellee Donald R. Higgins, a sergeant at EDCF, violated his First Amendment

right to freedom of speech by filing a disciplinary charge in retaliation for an

affidavit Mr. Zarska gave supporting another prisoner’s grievance.

      The district court dismissed Mr. Zarska’s complaint for failure to exhaust

his administrative remedies in accordance with 42 U.S.C. § 1997e(a) of the Prison

Litigation Reform Act (PLRA). In a footnote, the court stated that it “likely

would have dismissed plaintiff’s claims on the merits had it further considered the

matter.” R., Doc. 37 at 4 n.1.

      In a motion for reconsideration, Mr. Zarska argued that the exhibits

attached to his complaint demonstrated that he had exhausted his administrative

remedies. The district court denied the motion, stating that it “remain[ed]

unconvinced [Mr. Zarska] in fact exhausted his administrative remedies,” id.,

Doc. 46 at 2, and expounding upon its alternate determination that dismissal was

also proper on the merits. Mr. Zarska appeals the court’s orders dismissing his

complaint and denying his motion for reconsideration. Exercising our jurisdiction

under 28 U.S.C. § 1291, we reverse.

                                     Background


                                          -2-
      Mr. Zarska’s factual allegations are straightforward; for purposes of our

legal analysis we accept them as true and construe them in the light most

favorable to him. Yousef v. Reno, 254 F.3d 1214, 1219 (10th Cir. 2001). While

on his way to the prison library, Mr. Zarska witnessed Sergeant Higgins

threatening and intimidating another inmate and he later provided an affidavit

regarding the incident to that inmate. Shortly after Sergeant Higgins received a

copy of Mr. Zarska’s affidavit, he filed a disciplinary report charging Mr. Zarska

with “unauthorized presence” for having “no authorization to be out of his cell

house at the time [Mr. Zarska] witnessed [Sergeant Higgins] threatening and

intimidating [the] inmate.” R., Doc. 1 at 3. Mr. Zarska’s cell was searched in

connection with the disciplinary report despite the fact that it had been previously

searched that same morning. According to Mr. Zarska, the officers conducting

the search “ransack[ed] [his] living quarters.” Id. at 5.

      The day after the disciplinary report was filed, Mr. Zarska asked Sergeant

Higgins to withdraw the charge because he had permission to be out of his cell

house at the time in question. Sergeant Higgins refused, stating: “he now

realized that [Mr. Zarska] had a pass to be out of his cell house, but that

[Mr. Zarska] should not have been looking at what [Sergeant Higgins] was

doing.” Id. at 4.




                                          -3-
         The day after speaking to Sergeant Higgins, Mr. Zarska filed a grievance

alleging that the disciplinary report was filed in retaliation for his affidavit. The

response he received at all levels was that the grievance procedure could not be

used as a substitute for disciplinary proceedings. A disciplinary hearing was held

and the charge against Mr. Zarska was dismissed.



                        Exhaustion Of Administrative Remedies

         Section 1997e(a) provides that “[n]o 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.” “[Section] 1997e(a)

imposes a pleading requirement on the prisoner” that may not be waived and “a

complaint that fails to allege the requisite exhaustion of remedies is tantamount to

one that fails to state a claim upon which relief may be granted.” Steele v. Fed.

Bureau of Prisons, 355 F.3d 1204, 1209-10 (10th Cir. 2003) (quotation 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).

         In dismissing the complaint on exhaustion grounds, the district court found

that “it is clear from plaintiff’s complaint and the Martinez report that plaintiff


                                           -4-
never filed a grievance complaining of the alleged retaliation.” 1 R., Doc. 37 at 4.

On the contrary, Mr. Zarska alleged exhaustion in his complaint and attached as

exhibits copies of grievances and appeals alleging retaliation. In its denial of

Mr. Zarska’s motion for reconsideration, the court acknowledged that he had, in

fact, filed a grievance alleging retaliation, but did not expound upon its

exhaustion ruling, stating only: “[t]he court remains unconvinced that plaintiff in

fact exhausted his administrative remedies with respect to the claims alleged in

his Complaint.” Id., Doc. 46 at 2.

      Here, the prison relied on Kansas Administrative Regulations § 44-15-

101a(d)(2) in refusing to address Mr. Zarska’s grievances. Both the initial

administrative response and the second-level response from the warden referenced

this regulation, which reads in part: “The grievance procedure shall not be used

in any way as a substitute for, or as a part of, the inmate disciplinary procedure

. . . .” Kan. Admin. Regs. § 44-15-101a(d)(2). The third-level response from the

designee of the Secretary of Corrections simply incorporated the previous

responses. Regulation 44-15-101a(d)(2) further states that if the grievance

process “was conducted improperly, the grievance may challenge the manner in


1
       “A Martinez report is a judicially authorized investigative report prepared
by prison officials to help the court determine if a pro se prisoner’s allegations
have any factual or legal basis.” Simkins v. Bruce, 406 F.3d 1239, 1240 n.2 (10th
Cir. 2005) (internal quotation marks omitted).


                                         -5-
which the decision was made;” however, “[g]rievances of this type shall be made

only after the decision process is completed unless the inmate would incur

irreparable harm if delayed until the end of the process.” Id.

      We have held “that the PLRA . . . contains a procedural default concept

within its exhaustion requirement.” Ross v. County of Bernalillo, 365 F.3d 1181,

1186 (10th Cir. 2004). Consequently, Mr. Zarska’s grievances would be

insufficient to exhaust his administrative remedies if they were properly denied

for failure to follow the above grievance procedures. See Jernigan, 304 F.3d at

1032-33 (holding that inmate that the doctrine of substantial compliance does not

apply and the inmate must cure procedural deficiencies). Because of the brevity

of the responses to Mr. Zarska’s grievance and appeals, however, it is unclear

whether the correction officials interpreted the grievance as a premature attack on

the grievance procedure, or if they considered the issue to be not grievable.

      Either way, the district court erred in finding that Mr. Zarska failed to

exhaust his administrative remedies. Mr. Zarska’s grievance expressly alleged

retaliation and did not challenge the disciplinary procedure or the manner in

which the disciplinary decision was made. 2 Consequently, Mr. Zarska exhausted



2
      An allegation of retaliation by the filing of a disciplinary charge does not
necessarily require an attack on the disciplinary charge itself. See Peterson v.
Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (holding retaliation is improper
“even where the action taken in retaliation would be otherwise permissible”).

                                         -6-
his administrative remedies and the district court erred in dismissing his

complaint on exhaustion grounds.

           Failure To State A Claim Upon Which Relief May Be Granted

      We next examine whether Mr. Zarska’s complaint failed to state a claim

upon which relief may be granted.

      A complaint should not be dismissed [for failure to state a claim
      upon which relief may be granted] under Rule 12(b)(6) unless it
      appears beyond doubt that the plaintiff can prove no set of facts in
      support of his claim which would entitle him to relief.

Yousef, 254 F.3d at 1219 (internal quotation marks omitted).

      Mr. Zarska alleged that his First Amendment right to freedom of speech

was violated when Sergeant Higgins filed his disciplinary report and failed to

withdraw it once he knew the true facts. “We have held that prison officials may

not retaliate against or harass an inmate because of the inmate’s exercise of his

constitutional rights.” Peterson, 149 F.3d at 1144 (internal quotation marks and

alteration omitted). “Retaliation, though it is not expressly referred to in the

Constitution, is nonetheless actionable because retaliatory actions may tend to

chill individuals’ exercise of constitutional rights.” Poole v. County of Otero,

271 F.3d 955, 960 (10th Cir. 2001) (internal quotation marks omitted). But “[a]n

inmate claiming retaliation must allege specific facts showing retaliation because

of the exercise of the prisoner’s constitutional rights.” Peterson, 149 F.3d at

1144 (internal quotation marks omitted) (emphasis in original).

                                          -7-
      Sergeant Higgins argued that the complaint should be dismissed for failure

to state a claim because “even were it true that [he] acted in retaliation, the prison

system corrected the problem by dismissing the disciplinary report.” R., Doc. 20

at 3. The district court agreed, citing Love v. Scrivner, 2004 WL 2029328 (D.

Kan. Sept. 3, 2004) (unpublished). In Love, a prison librarian threatened to fire

prisoners working in the library if they continued to complain about library

procedures. When one of the prisoners filed a grievance alleging retaliation and

violation of his right to free speech, the librarian was informed that her actions

were inappropriate and she apologized to the inmate for making the threatening

statements. The inmate was unsatisfied and filed a lawsuit for damages. The

district court dismissed the complaint finding that the grievance system had

remedied the alleged violation and that a person of ordinary firmness would not

have been chilled by the comment which had been promptly withdrawn and

apologized for.

      Relying on Love, the district court held that Mr. Zarska’s First Amendment

rights were neither subjectively nor objectively chilled because (1) he filed a

grievance against Sergeant Higgins, and (2) a person of ordinary firmness would

not have been chilled by Sergeant Higgins’ actions. The court also found that,

like the inmate in Love, Mr. Zarska “was given immediate relief once his

complaint was heard through the proper procedural channels.” R., Doc. 46 at 4.


                                          -8-
The court “note[d] that, had the disciplinary hearing perpetuated the error and

punished [Mr. Zarska] for being where he was authorized to be, a different result

might be justified. But the purpose of the disciplinary proceeding is to correct

such potential errors.” Id.

      We disagree that Mr. Zarska obtained relief through the disciplinary

proceedings. Mr. Zarska alleged that Sergeant Higgins filed his disciplinary

complaint in retaliation for the affidavit and refused to withdraw the complaint

even though he knew it was baseless. The prison refused to act on Mr. Zarska’s

grievance and the disciplinary hearing did not address Mr. Zarska’s retaliation

claim. The dismissal did not remedy Sergeant Higgins’ actions–it simply

prevented the harm to Mr. Zarska caused by those actions from being greater than

it already was.

      Further, we hold that Sergeant Higgins’ alleged filing of disciplinary

proceedings to retaliate for a report of misconduct “would chill a person of

ordinary firmness from continuing to engage in that activity.” 3 Poole, 271 F.3d at

960 (internal quotation marks omitted). Considering the level of control that


3
       It is irrelevant that Mr. Zarska subsequently filed his grievance against
Sergeant Higgins. As noted above, the proper inquiry is whether Sergeant
Higgins’ actions would “chill a person of ordinary firmness from continuing to
engage in that activity,” Poole, 271 F.3d at 960, not whether Mr. Zarska
specifically was prevented from filing any further affidavits or grievances. Cf id.
(holding that reckless driving charges lodged against a motorcyclist need not have
actually deterred the motorcyclist from suing the arresting officers).

                                         -9-
prison officials have over inmates’ lives, retaliation is not to be taken lightly.

Sergeant Higgins’ alleged pursuit of a baseless disciplinary charge should not be

ignored simply because the charge was later dismissed at the disciplinary hearing.

There is, after all, no guarantee that a baseless charge will always be dismissed.

But even if the disciplinary charge had not been baseless, there is an implicit

threat in the filing of a valid charge for retaliatory reasons that would chill further

action. Pursuing disciplinary proceedings against a prisoner as punishment for a

prisoner’s exercise of his or her constitutionally protected rights, is not allowed.

                                      Conclusion

      Therefore, we conclude that the district court erred in dismissing

Mr. Zarska’s complaint for failure to exhaust his administrative remedies and for

failure to state a claim upon which relief may be granted. We therefore

REVERSE the court’s orders dismissing Mr. Zarska’s complaint and denying his

motion for reconsideration and REMAND the case to the district court for further

proceedings consistent with this Order and Judgment.



                                                      Entered for the Court



                                                      Monroe G. McKay
                                                      Circuit Judge



                                          -10-
