                                                           FILED
                                               United States Court of Appeals
                  UNITED STATES COURT OF APPEALS       Tenth Circuit

                         FOR THE TENTH CIRCUIT           December 19, 2013

                                                        Elisabeth A. Shumaker
                                                            Clerk of Court
MURTAZA ALI,

           Plaintiff - Appellant,

v.                                              No. 13-6093
                                         (D.C. No. 5:11-CV-00505-C)
GREG PROVINCE, Warden; CURTIS                   (W.D. Okla.)
HOOD, Chief of Security; IRENE LEE,
Coordinator Faith Based Program;
STEVE MOLES, Unit Manager;
CAROL DEBOE, Case Manager;
DAVID MILLER, Warden; DEAN
CALDWELL, Deputy Warden,

           Defendants - Appellees,

and

JUSTIN JONES, Director DOC; BOBBY
BOONE, Deputy Director; DEBBIE
MORTON, Director’s Designee; BRAD
JOHNSON, Chaplain; JANET CAVE,
Policy and Procedure; LISA FORD,
Kitchen Manager; DAVID MUSTAIN,
Vice President GEO Group; RENEE
WATKINS, Administrator Private
Prisons; DAN BUTLER, Chief of
Security; RAMONA HOLLIER, Contract
Monitor; ROCKY CANTWELL,
STG Officer; DAVID CLARK,
Grievance Officer; SABINE HILDNER,
RHU Officer; JANE DOE, Fleener and
Halvorson, Medical Supervisor; JANE
DOE, Roody, RHU SGT; JOHN DOE,
Tinker, Chaplain; JOHN DOE, Internal
Affairs; ALICIA MADDOCKS, Internal
Affairs Officer ODOC; JOHN DOE,
ODOC Legal; BILLY GIBSON,
Warden’s Assistant; DENISE WALKER,
Parole Investigator; MELISSA
HALVERSON, Medical Supervisor;
RICHARD TINKER, Chaplain;
RONALD ANDERSON, Legal Counsel,

             Defendants.


                             ORDER AND JUDGMENT*


Before GORSUCH, ANDERSON, and HOLMES, Circuit Judges.


      Murtaza Ali, an Oklahoma state prisoner, wrote to the administrator of the

prison’s faith-based program asking if she was a lesbian. Mr. Ali says he needed to

know before applying to participate in the prison’s faith-based programs because

taking instruction from a homosexual would violate his Muslim faith. He says, too,

that the defendants (prison officials all) proceeded to retaliate against him for his

inquiry — retaliation that, Mr. Ali says, violated his First Amendment rights and led

him to file this lawsuit pursuant to 42 U.S.C. § 1983.




*
      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.



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      When the defendants moved for summary judgment, however, Mr. Ali didn’t

respond. His counsel repeatedly sought and received more time to reply, but when

three months passed after the last deadline still without word from Mr. Ali or his

counsel, the magistrate judge issued a report and recommendation suggesting

dismissal. The magistrate judge suggested dismissal on the ground that the

defendants had presented undisputed evidence proving that Mr. Ali failed to exhaust

his administrative remedies before filing his lawsuit. Exhaustion of administrative

remedies is, of course, a precondition to suit under the Prisoner Litigation Reform

Act (PLRA) and “unexhausted claims cannot be brought in court.” Thomas v. Parker,

609 F.3d 1114, 1117 (10th Cir. 2010). Alternatively, the magistrate judge

recommended dismissal for certain defendants pursuant to the Eleventh Amendment,

see Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006), and dismissal for

other defendants because they had not personally participated in the challenged

actions, an essential element in a § 1983 claim, see Mitchell v. Maynard, 80 F.3d

1433, 1441 (10th Cir. 1996).

      The district court, in turn, adopted the report and recommendation over Mr.

Ali’s objections and granted summary judgment to all defendants. In reply, Mr. Ali

filed a motion to set aside the judgment under Fed. R. Civ. P. 60(a) and (b). He

argued that he had failed to respond to the summary judgment motions only because

of his attorney’s deficient representation. The district court denied the motion,




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explaining that counsel’s performance could not have altered an outcome inevitably

and unavoidably mandated by law.

      Now before us, Mr. Ali argues that the magistrate judge abused his discretion

by failing to issue a show cause order before filing his report and recommendation.

With this, however, we cannot agree. The magistrate judge repeatedly granted

Mr. Ali and his counsel extra time to respond to the defendants’ motion for summary

judgment, warned them in the last extension order that further extensions of time

would not be favored, and waited an additional three months after the final deadline

before issuing the report and recommendation, at which time the summary judgment

motions had been pending for six months. The magistrate judge was not required to

issue Mr. Ali a show cause order in these circumstances and we find no abuse of

discretion in his course of conduct.

      Alternatively, Mr. Ali argues that summary judgment was inappropriate

because he substantially complied with PLRA’s exhaustion requirement. The record,

however, shows otherwise. Though some of Mr. Ali’s proffered evidence (all of

which was, again, untimely submitted after the magistrate’s report and

recommendation) suggests that he began the grievance process as to some claims,

that same evidence also suggests he failed to correct cited procedural defects in his

grievance forms. And it is settled law that “[a]n inmate who begins the grievance

process but does not complete it is barred from pursuing a § 1983 claim under PLRA

for failure to exhaust his administrative remedies.” Thomas, 609 F.3d at 1118


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(internal quotation marks omitted) (finding a failure to exhaust where inmate failed to

cure noted deficiencies in his grievance forms).

      To this, Mr. Ali replies that in January 2011 he was on “Grievance

Restrictions,” and thus unable to correct his defective grievance forms. But by that

date the time for correcting his grievance had already come and gone. Neither does

Mr. Ali explain any reason why he could not have corrected his grievances before

January 2011. So all this turns out to help his cause not at all.

      At the end of the day, we can report that we have carefully reviewed the

record, including all of Mr. Ali’s untimely-submitted materials, and find that even in

light of these materials Mr. Ali has still failed to demonstrate he properly exhausted

any of his claims or any disabling impediment precluding him from doing so. Given

this, the district court could not have erred in dismissing Mr. Ali’s claims against all

of the defendants for failure to exhaust. And because no unexhausted claim can be

considered by a court, Thomas, 609 F.3d at 1117, Mr. Ali’s remaining challenges to

the district court’s actions, including its grant of summary judgment and its rejection

of his Rule 60 motion must, of necessity, also fail.

      Mr. Ali’s motion to proceed on appeal without prepayment of costs and fees is

granted. He is reminded that he is obligated to continue making partial payments

until the entire obligation is paid. The judgment of the district court is affirmed for

substantially the reasons stated in the magistrate judge’s report and recommendation,

dated February 19, 2013; the district court’s order adopting the report and


                                          -5-
recommendation, dated March 15, 2013; and the district court’s order denying Ali’s

Rule 60 motion, dated April 3, 2013.


                                             ENTERED FOR THE COURT


                                             Neil M. Gorsuch
                                             Circuit Judge




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