                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES COURT OF APPEALS December 28, 2007
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 ERNIE JOE FIELDS,

               Plaintiff - Appellant,                   No. 06-7104
          v.                                         (E. D. Oklahoma)
 OKLAHOMA STATE                                 (D.C. No. 05-CV-186-FHS)
 PENITENTIARY; MIKE MULLIN,
 Warden; LEE MANN; JANE
 STANDIFORD, Deputy Warden;
 KAMERON HARVANEK, Deputy
 Warden; WAYNE BRAKENSIEK;
 ROCKY BINGHAM; LAYNE
 DAVISON; DR. MARTIN; DEBBIE
 MORTON,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.


      On June 15, 2005, Ernie Joe Fields, a state inmate appearing pro se, filed in

the United States District Court for the Eastern District of Oklahoma a complaint


      *
       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not binding precedent except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
against the Oklahoma State Penitentiary (OSP) and nine OSP employees. He

alleged claims under 42 U.S.C. § 1983 for violations of various constitutional

rights, and also appears to have raised other federal-law and state-law claims.

The district court dismissed all the federal-law claims for failure to exhaust

administrative remedies and then exercised its discretion under 28 U.S.C.

§ 1367(c)(3) to dismiss the pendent state-law claims. Mr. Fields challenges the

grant of summary judgment and the district court’s denial of two motions to

amend. We affirm the dismissal of all but one of the federal claims for failure to

exhaust and affirm dismissal of the remaining federal claim on other grounds.

We also affirm the denial of the motions to amend and the dismissal of the state-

law claims.

      A.      Jurisdiction

      We first must address our jurisdiction to hear this appeal. Mr. Fields filed

his notice of appeal after the district court granted judgment to OSP and six

individuals who had been served: Warden Mike Mullin, Rocky Bingham, Wayne

Brakensiek, Layne Davison, Kameron Harvanek, and Jane Standiford (the

Individual Defendants). But the claims against three unserved defendants were

still pending, so no final order had been entered. See Fed. R. Civ. P. 54(b); Atiya

v. Salt Lake County, 988 F.2d 1013, 1016 (10th Cir. 1993) (order is not a final

judgment unless it disposes of all claims by all parties or is certified as a final

order under Fed. R. Civ. P. 54(b)). In general a party may not appeal until entry

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of a final order. See 28 U.S.C. § 1291; Van Cauwenberghe v. Biard, 486 U.S.

517, 521 (1988). The notice of appeal was therefore premature. See Lewis v.

B.F. Goodrich Co., 850 F.2d 641, 643 (10th Cir. 1988). A premature notice of

appeal may ripen, however, upon entry of a subsequent final order, see Fed. R.

App. P. 4(a)(2); id. at 645–46, so long as the order leading to the premature notice

of appeal has some indicia of finality and is likely to remain unchanged during

subsequent court proceedings, see FirsTier Mortgage Co. v. Investors Mortgage

Ins. Co., 498 U.S. 269, 277 (1991); Hinton v. City of Elwood, Kan., 997 F.2d 774,

778 (10th Cir. 1993); Reed v. McKune, 153 Fed. App’x 511, 513 (10th Cir. 2005)

(“Another limitation implicit in the Lewis standard is that the order leading to the

premature notice of appeal must have independent indicia of finality.”). Those

conditions were satisfied, when the district court completely disposed of the case

by dismissing the unserved defendants, so the notice of appeal ripened. Hence,

we have jurisdiction to review the court’s orders granting summary judgment.

Although Mr. Fields did not designate in his notice of appeal the court’s order

denying his motions to amend, a notice of appeal that names the final judgment is

sufficient to support jurisdiction over earlier orders that merged in the final

judgment. See Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1383 n.7 (10th Cir.

1994).




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      B.    Summary Judgment

      The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), requires

that a prisoner exhaust administrative remedies before filing a federal-law action

with respect to prison conditions. 1 “An inmate who begins the grievance process

but does not complete it is barred from pursuing a [federal] claim under the PLRA

for failure to exhaust his administrative remedies.” Jernigan v. Stuchell, 304 F.3d

1030, 1032 (10th Cir. 2002). To exhaust administrative remedies an inmate must

properly comply with grievance procedures; substantial compliance is

insufficient. See id. In this case Mr. Fields was required to complete the inmate-

grievance process established by the Oklahoma Department of Correction

(ODOC).

      OSP and the Individual Defendants moved in district court for summary

judgment on the ground that Mr. Fields had failed to exhaust his remedies under

the ODOC grievance process. Mr. Fields responded and also submitted motions

for leave to amend his complaint. The proposed amended complaint does not

appear in the record on appeal, but it was apparently attached to a pleading filed

in response to the Martinez report ordered by the court. See Martinez v. Aaron,

570 F.2d 317 (10th Cir. 1978). The court denied the motions to amend. It

      1
       Section 1997e(a) states:
      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.

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characterized the proposed amended complaint as “apparently . . . [Mr. Fields’s]

attempt to prove he has exhausted his administrative remedies,” R. Doc. 36

(Minute Order, Mar. 22, 2006), and permitted Mr. Fields additional time to

prepare a response to the Martinez report with appropriate attachments.

      On August 10, 2006, the district court granted the motions for summary

judgment. We review de novo the court’s finding of failure to exhaust

administrative remedies. See Miller v. Menghini, 213 F.3d 1244, 1246 (10th Cir.

2002) overruled on other grounds by Booth v. Churner, 532 U.S. 731 (2001).

      Mr. Fields filed grievances with the ODOC that apparently encompass all

the actions upon which he bases his federal claims in this case. But, with one

possible exception, he failed to comply with required grievance procedures, so he

failed to exhaust his administrative remedies, see Jernigan, 304 F.3d at 1032, and

cannot pursue those claims. From February 11, 2005, to August 11, 2005,

Mr. Fields filed approximately 50 grievances. The defendants’ brief points out

that each was rejected by the ODOC for failure to comply with one or more

requirements of the ODOC’s grievance policy. Mr. Fields’s briefs fail to address

any of these alleged shortcomings. He claims only that he was hampered in

exhausting his remedies and proving that he had exhausted, because he was

denied access to and storage space for his legal materials. But he gives no

specifics; bald allegations cannot preclude summary judgment. Moreover, as we




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understand his reply brief, he acknowledges that he obtained the documents he

sought in time to respond to defendants’ summary-judgment motion.

      Although we certainly have no obligation to examine each of the ODOC’s

denials of Mr. Fields’s grievances to see whether each grievance was in fact

flawed, see Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (it is not the

proper role of courts to act as an advocate for pro se litigants), we note that

Mr. Fields may have exhausted a medical claim in connection with a grievance he

filed on February 23, 2005. Under this court’s precedent before Jones v. Bock,

127 S. Ct. 910 (2007), this possibility would have been irrelevant because under

the “total exhaustion” rule established in Ross v. County of Bernalillo, 365 F.3d

1181, 1188–89 (10th Cir. 2004), the presence of even one unexhausted claim in

the inmate’s complaint required the district court to dismiss the action in its

entirety without prejudice. In Jones, however, the Supreme Court rejected the

total-exhaustion rule, instructing that courts should proceed with the exhausted

claims and dismiss the unexhausted claims without prejudice, rather than dismiss

the entire action. See 127 S. Ct. at 924–26. Therefore, if Mr. Fields were able to

show that he has exhausted any of his federal-law claims, he would be entitled to

proceed with those claims in the district court.

      Nevertheless, even if Mr. Fields properly pursued his medical claim

through the ODOC grievance procedure, remand would not be appropriate.

Defendants Dr. Martin and the OSP are the only named defendants implicated in

                                          -6-
Mr. Fields’s medical claim. Dr. Martin, however, was not dismissed from this

case on summary judgment. Rather, he was one of the three defendants granted

dismissal because Mr. Fields failed to serve them. Mr. Fields has not challenged

the district court’s dismissal without prejudice of those three defendants. (And if

he had, his challenge would not succeed. It is the plaintiff’s responsibility to

provide the United States Marshal with the address of the person to be served, see

form USM-285; the Marshal is not charged with finding a defendant who has

moved without providing an accessible forwarding address.) Therefore,

Mr. Fields may not proceed with a claim against Dr. Martin. As for the OSP,

Mr. Fields may not proceed with a claim against it because such a claim is barred

by the Eleventh Amendment. See Edelman v. Jordan, 415 U.S. 651, 662–63

(1974); Eastwood v. Dep’t of Corr. of Okla., 846 F.2d 627, 631–32 (10th Cir.

1988).

         C.    Motions for Leave to Amend

         We review for abuse of discretion the district court’s denial of Mr. Fields’s

motions to amend his complaint. See Grossman v. Novell, Inc., 120 F.3d 1112,

1126 (10th Cir. 1997). We discern no error by the court. The court characterized

the proposed pleading as not really an amended complaint but an effort to show

exhaustion. Mr. Fields does not dispute this characterization. Because Mr. Fields

was given an additional opportunity to file such support, he suffered no prejudice.

Of course, we could also reject the appeal of this ruling on the ground that

                                           -7-
Mr. Fields has not provided an adequate record on appeal. See Taylor v. Phelan,

9 F.3d 882, 884 n.4 (10th Cir. 1993) (declining to address an issue when

evidentiary materials necessary for proper consideration of the issue are not

included in the record on appeal).

      D.     State-Law Claims

      Because we affirm the dismissal of all Mr. Fields’s federal-law claims,

dismissal of his state-law claims under 28 U.S.C. § 1367(c)(3) was proper.

      The judgments of the district court are AFFIRMED. We DENY

Mr. Fields’s Motion for Reconsideration filed in this court on December 26, 2006;

to the extent that it seeks relief on appeal, Mr. Fields had the opportunity to

address the issues in his later briefs to this court.

                                         ENTERED FOR THE COURT


                                         Harris L Hartz
                                         Circuit Judge




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