                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                                                                           January 9, 2007
                     UNITED STATES CO URT O F APPEALS
                                                                        Elisabeth A. Shumaker
                                  TENTH CIRCUIT                             Clerk of Court



 W IN FRED CICERO, JR.,

               Plaintiff-Appellant,                  Nos. 06-3109 and 06-3162
 v.                                                          (D. Kansas)
 (FNU) M ITCHELL, Associate                        (D.C. No. 04-CV-3273- SAC)
 W arden, USP Leavenworth, UN ITED
 STA TES O F A M ER IC AN , (FN U)
 ASHM AN, Associate W arden, USP
 Leavenworth, (FNU) O’CONNO R,
 W arden,
            Defendants-Appellees.




                             OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, 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 F ED . R. A PP . P. 34(a)(2); 10 TH C IR . 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        This order and judgment is not binding precedent, except under the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.
      W infred Cicero, a federal prisoner proceeding pro se, appeals the district

court’s dismissal of his amended complaint, which alleged he was unlaw fully

placed and held in administrative segregation at the United States Penitentiary in

Leavenworth, Kansas. The district court determined that M r. Cicero had not

exhausted his administrative remedies for bringing an action Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) and

had not stated a claim under the Federal Tort Claims Act, 28 U.S.C. § 2875(a)

(“FTCA”). Accordingly, the district court dismissed his complaint without

prejudice, and denied M r. Cicero’s motion, which he renews before us, to proceed

in form a pauperis (“IFP”). The district court also denied M r. Cicero’s post-

judgment motion to amend his complaint. For the follow ing reasons, we reverse

and remand.

                                 I. BACKGROUND

      M r. Cicero, who identifies himself as a “Sunni M uslim,” contends he was

retaliated against, deprived of a liberty interest, deprived of his equal protection

rights, and deprived of his procedural due process rights when he was sequestered

in Leavenworth’s Special Housing Unit without notice of charges. In his initial

complaint, M r. Cicero alleged only a violation of the FTCA. The district court

noted however that M r. Cicero could not prevail on such a claim, because (1) he

did not exhaust his FTCA claims, and/or (2) his claim for damages for mental

anguish were insufficient to state a claim under 42 U.S.C. § 1997(e).     The district

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court added that M r. Cicero had exhausted a Bivens claim, but had pled it

incorrectly: “[P]laintiff documents his full exhaustion of the Bureau of Prisons

administrative grievance procedure, which suggests plaintiff may be seeking

relief for the alleged violation of his constitutional rights.” Rec. doc. 4, at 3

(D ist. Ct. Order, dated Sept. 9, 2004).

      In response to the district court’s order, M r. Cicero sought to amend his

complaint, to plead a Bivens action, and to seek compensatory and injunctive

relief. Rec. doc. 13. The case was reassigned to a different district court judge

and the district court, after granting M r. Cicero’s motion to amend, dismissed the

Bivens claim, reasoning that M r. Cicero failed to “exhaust [his] administrative

remedies on any claim of racial discrimination, and his bare allegation of

defendants’ discrimination neither satisfies nor excuses this statutory exhaustion

requirement.” Dist. Ct. Order at 3, filed M arch 7, 2006. The district court also

dismissed the FTCA claim because (1) M r. Cicero’s complaint contained a

mixture of exhausted and unexhausted claims pursuant to 28 U.S.C. § 1997e(a);

and (2) M r. Cicero could not satisfy § 1346(b)(2)’s requirement action that such

an action show physical injury. On April 7, 2006, M r. Cicero attempted to amend

his complaint once more. The district court denied this motion.

                                   II. DISCUSSION

      W e review de novo a district court’s dismissal for failure to exhaust

administrative remedies under § 1997e(a). See Jernigan v. Stuchell, 304 F.3d


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1030, 1032 (10th C ir. 2002). Liberally construing M r. Cicero’s pleadings, as we

must, Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Cum mings v. Evans, 161

F.3d 610, 613 (10th Cir.1998), M r. Cicero contends that the six-week segregation

was (1) a retaliatory act that (2) violated his right to equal protection based on his

religious beliefs as a Sunni M uslim. He also alleges that (3) this liberty interest

deprivation was inflicted without (4) procedural due process in violation of the

Fourteenth Amendment. Rec. doc. 13, at 6-7, Amended Complaint, filed June 6,

2005. (“Plaintiff received no order of detention for breaking any bureau rules or

pending an investigation,. . . . [The W arden] ordered that all M uslims be taken

into custody [which was] a discriminative act . . . . [P]laintiff’s constitutional

rights w ere violated because he was taken into custody solely because of his

beliefs in Islam and the fact that he was a M uslim.”).

      W e disagree with the district court’s decision to dismiss M r. Cicero’s

Bivens claim for failure to “pursue and exhaust administrative remedies on any

claim of racial discrimination.” Dist. Ct. Order at 3, filed M arch 7,2006. W e see

no allegation regarding racial discrimination in M r. Cicero’s amended complaint.

Rec. doc. 13.

      Additionally, as the first district court judge had previously determined, in

its September 9, 2004 Order, M r. Cicero has provided documentation establishing




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that he exhausted his Bivens claim. 1 Rec. doc. 4, at 3 (“Plaintiff documents his

full exhaustion of the Bureau of Prisons administrative grievance procedure . . .

.”). The amended complaint makes no reference to a claim under the FTCA.

M oreover, M r. Cicero’s appellate brief and his post-judgment motion to amend

indicate that when M r. Cicero amended his complaint pursuant to the district

court’s suggestion he intended to change “F.T.C.A.” to “Bivens” throughout the

complaint. See Rec. doc. 25, at 2 (“Amendment,” filed April 7, 2006).

                                 III. CONCLUSION

      Accordingly, we REVERSE the district court’s order dismissing M r.

Cicero’s complaint and REM AND to the district court so that the district court

may evaluate M r. Cicero’s claim that he was retaliated and discriminated against


      1
         Specifically, the record indicates that M r. Cicero filed an Informal
Attempt to Resolve on July 22, 2004 informing staff at Leavenworth of his due
process rights w hen he was placed in the Special H ousing Unit (“I was only
locked down because I was a M uslim.”). Rec. doc. 1, attachments. On July 27,
2004, he filed a Form BP-9 with the warden (“I was locked down . . . upon my
answering [as to my religious preference]. I was escorted to [Special Housing
Unit] without rec[ei]ving any lock-up papers.”). On August 19, 2003, he filed
Form BP-10 with the Regional Office (“[A]ll of the other prisoners that arrived
with me were admitted to population . . I [did not] rec[ei]ve a detention order.
Once I answered [] I was M uslim, the interview was over and I was taken to the
[Special Housing Unit].”), and on November 22, 2003, he filed a form with the
Central Office Administrative Remedy Appeal (“when I apprised staff that I was
M uslim, I was detained and escorted to [Special Housing Unit], because of an
incident that occur[r]ed prior to my arrival”). Id., attachments to Complaint.
There is no question that M r. Cicero’s filings satisfactorily “alert[ed] the prison to
the nature of the wrong for which redress is sought.” Kikumura v. Osagie, 461
F.3d 1269, 1283 (10th Cir. 2006) (quoting Strong v. David, 297 F.3d 646, 650
(7th Cir. 2002)).


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when he w as placed into administrative segregation based upon his status as a

M uslim. W e G RANT M r. Cicero’s motion to proceed IFP and remind M r. Cicero

that he must continue making partial payments until the entire balance of the

appellate filing fee is paid.



                                              Entered for the Court,



                                              Robert H. Henry
                                              Circuit Judge




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