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

                                                                    February 13, 2007
                    UNITED STATES CO URT O F APPEALS
                                                                   Elisabeth A. Shumaker
                           FO R TH E TENTH CIRCUIT                     Clerk of Court




    RO BERT M ARK STEPH EN S,

             Plaintiff - Appellant,

                                                        No. 06-6149
      v.                                          (D.C. No. 04-CV -1260-T)
                                                        (W .D. Okla.)
    M ELINDA GUILFO YLE, Designee;
    DIANNE KOLAR, Law Library
    Supervisor; B REN T FA TK IN ,
    W arden; M R. M OREY, Lieutenant;
    KAREN STUCHELL, Law Library
    Supervisor; BRENDA BROOKS, Unit
    M anager; TERRY CODY, Lieutenant,
    OSR; UNKNOW N JOHN DOES,

             Defendants - Appellees.




                            OR D ER AND JUDGM ENT *


Before PO RFILIO, B AL DOC K , and EBEL, 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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Plaintiff Robert M ark Stephens, an Oklahoma state inmate proceeding

pro se and in forma pauperis, appeals the district court’s order dismissing his

complaint alleging that various prison-administration personnel violated his

constitutional rights. He filed suit under 42 U.S.C. § 1983. The district court

determined that M r. Stephens had exhausted only one of his several claims

through the prison grievance procedure and dismissed the complaint without

prejudice. W e exercise jurisdiction under 28 U.S.C. § 1291 and affirm, albeit for

different reasons than those relied on by the district court due to intervening

Supreme Court precedent.

                                     Background

      M r. Stephens originally filed his lawsuit in the Northern District of

Oklahoma. After it was transferred to the W estern District, he filed an amended

complaint naming seven defendants. 1 Of those, only three were served with the

summons and complaint. Therefore, we review M r. Stephens’ claims against

those three, defendants Brooks, Cody, and Kolar.




1
       The caption also named “Unknown Does,” but the amended complaint does
not allege any wrongdoing by unnamed defendants. M oreover, courts generally
permit a plaintiff to use unnamed defendants, but the plaintiff must “provide[] an
adequate description of some kind which is sufficient to identify the person
involved so process eventually can be served.” Roper v. Grayson, 81 F.3d 124,
126 (10th Cir. 1996). Given that the unnamed defendants were merely included
in the caption of the amended complaint, we do not consider them.

                                         -2-
      As the parties recognize, the Prison Litigation Reform Act (PLRA) requires

a prisoner to exhaust all available prison remedies before filing suit under § 1983

based on prison conditions. 42 U.S.C. § 1997e(a). The district court found that

M r. Stephens exhausted prison grievance procedures on his claims against

M s. Kolar, a prison law library supervisor, a finding appellees expressly confirm. 2

M r. Stephens does not contest this finding; rather, he contends in general terms

that his attempts to exhaust prison grievance procedures were thwarted by

prison officials seeking to prevent him from doing so. W e do not consider

M r. Stephens’ allegations against M s. Brooks due to his failure to exhaust prison

administrative remedies on those claims.

      As to defendant Cody, the district court did not address whether

M r. Stephens had exhausted a grievance against him because the court determined

that the statute of limitations had expired on the claims against M r. Cody before

suit w as filed. This procedure was entirely proper. See Woodford v. Ngo,

___ U.S. ___, 126 S. Ct. 2378, 2392 (2006) (considering dismissal under

42 U.S.C. § 1997e(c)(2), stating PLRA exhaustion requirement is not

jurisdictional; district court may “dismiss plainly meritless claims without first

addressing what may be a much more complex question, namely, whether the

prisoner did in fact properly exhaust available administrative remedies”). The


2
       Appellees acknowledge that M r. Stephens also exhausted a grievance
pertaining to the number of hours he was allowed to be in the prison law library.
This grievance does not apply to any alleged wrongdoing by the three appellees.

                                         -3-
court recognized that the limitations period for M r. Stephens’ RICO claim against

M r. Cody had not expired, but held that the amended complaint failed to state a

RICO claim because M r. Stephens did not allege that he was “‘injured in his

business or property by reason of’ the alleged violation of [18 U.S.C. §] 1962.”

R. Doc. 44 at 6 n.2 (citing 18 U.S.C. § 1964(c)). On appeal, M r. Stephens

challenges only the ruling on the RICO claim.

      M r. Stephens asserts that M s. Kolar violated his constitutional right of

access to the courts. He claims M s. Kolar, in her capacity as a law library

supervisor, “caused [him] to mail a legally frivolous lawsuit against [his former

employer] to the U.S. Northern District of Oklahoma Court,” claiming wrongful

discharge. R. Doc. 6 at 5. He also alleges that M s. Kolar later prepared a

fraudulent motion to dismiss the suit and a supporting affidavit. He further

alleges that she then obtained his signature on those documents by deceit and

filed them, thus causing the court to dismiss his civil suit. In addition to having

his suit dismissed against his wishes, he maintains that M s. Kolar included in the

affidavit statements that could subject him to criminal sanctions. In response to

M r. Stephens’ prison grievance, M s. Kolar stated that she watched him read and

sign the motion to dismiss, and then she mailed it to the court upon his request.

R. Doc. 6, Ex. 29 at 2.

      Applying then-controlling circuit precedent, the district court held that

M r. Stephens’ failure to exhaust administratively all of his claims required


                                          -4-
dismissal of the entire action without prejudice. See Ross v. County of Bernalillo,

365 F.3d 1181 (10th Cir. 2004), abrogated by Jones v. Bock, ___ U.S. ___,

127 S. Ct. 910 (2007). Consequently, the court dismissed without prejudice the

claims against defendants Kolar and Brooks, and it dismissed with prejudice the

claims against defendant Cody. 3

                               Standards of Review

      W e review de novo the district court’s dismissal under the PLRA for failure

to exhaust prison administrative remedies. Whitington v. Ortiz, 472 F.3d 804, 807

(10th Cir. 2007). W e also review de novo the district court’s order dismissing the

claims against M r. Cody on statute-of-limitations grounds. See Cory v. Aztec

Steel Bldg., Inc., 468 F.3d 1226, 1233 (10th Cir. 2006). Because M r. Stephens is

representing himself, we liberally construe his pleadings; however, we do not act

as his advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

                            Right of Access to the Court

      After the district court issued its judgment in this case, the Supreme Court

announced its decision in Jones v. Bock, holding that where a prisoner’s

complaint contains claims that were exhausted administratively as well as claims

that were not, the proper procedure is to dismiss the unexhausted claims, not to



3
       The district court also denied M r. Stephens’ motion for a temporary
restraining order and his motion for sanctions against defendants’ attorney.
M r. Stephens does not appeal those rulings, although he has filed a motion with
this court for injunctive relief.

                                        -5-
dismiss the complaint as a whole. 127 S. Ct. at 924. Consequently, although the

district court’s ruling was correct at the time it w as issued, see Ross, 365 F.3d

at 1190, under Jones it was error to dismiss the entire action. Instead, the district

court should have addressed M r. Stephens’ claims against M s. Kolar, which w ere

the only exhausted claims before it.

      W e do not automatically remand for this purpose, however. Rather, we

evaluate whether the claims against M s. Kolar are frivolous and therefore subject

to dismissal. See 28 U.S.C. § 1915(e)(2)(B)(i) (stating when evaluating claims in

prisoner case filed in forma pauperis, “the court shall dismiss the case at any time

if the court determines that . . . the action or appeal is frivolous or malicious”)

(emphasis added). “Normally, a federal appellate court does not consider an issue

not passed upon below[, but] § 1915 mandates the dismissal of a claim contained

in an IFP complaint at any time a court deems the complaint to be frivolous.”

Fogle v. Pierson, 435 F.3d 1252, 1262 (10th Cir.) (citation and quotations

omitted) (remanding only those claims having arguable basis either in law or in

fact), cert. denied, 127 S. Ct. 675 (2006).

      M r. Stephens alleges he was denied access to the courts when M s. Kolar

induced him to file a legally frivolous lawsuit and later to request that the suit be

dismissed against his wishes. In addition, he contends that M s. Kolar

fraudulently caused him to sign an affidavit that could subject him to criminal

sanctions. These claims are frivolous for at least two reasons. First,


                                          -6-
M r. Stephens has alleged no injury sustained by having his admittedly frivolous

suit dismissed, and therefore he does not have standing to bring this claim. “[A]n

inmate must satisfy the standing requirement of ‘actual injury’ by showing that

the denial of legal resources hindered the prisoner’s efforts to pursue a

nonfrivolous claim.” Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir. 1996).

Similarly, M r. Stephens does not assert that he was actually subjected to criminal

sanctions due to the allegedly fraudulent affidavit, another reason he lacks

standing to bring this claim.

      Second, the constitutional right of access to the courts does not extend to a

capacity to litigate claims such as M r. Stephens’ w rongful discharge claim. See

Lewis v. Casey, 518 U.S. 343, 355 (1996). The Supreme Court has held that the

guarantee of access to the courts requires prisons to provide legal tools “inmates

need in order to attack their sentences, directly or collaterally, and in order to

challenge the conditions of their confinement. Impairment of any other litigating

capacity is simply one of the incidental (and perfectly constitutional)

consequences of conviction and incarceration.” Id. Accordingly, we determine

that M r. Stephens’ claims against M s. Kolar are frivolous and must be dismissed.

                                  Remaining Claims

      M r. Stephens apparently does not dispute the district court’s finding, and

appellees’ concession, that he exhausted only two grievances. He contends,

however, that he should not be required to complete the prison grievance


                                          -7-
procedure because some prison officials have taken actions to prevent him from

doing so and he has made his complaints known through channels other than the

grievance procedures. But a prisoner must exhaust the administrative remedies

available. See Booth v. Churner, 532 U.S. 731, 741 (2001). M oreover, “the

PLRA’s exhaustion requirement applies to all inmate suits about prison life.”

Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is mandatory, Jernigan v.

Stuchell, 304 F.3d 1030, 1033 (10th Cir. 2002), and proper exhaustion is required,

Woodford, 126 S. Ct. at 2387.

      M r. Stephens’ argument that prison officials have interfered with his

grievances in various ways, such as delay in responding, “is akin to an argument

that prison officials should be equitably estopped from relying upon the

exhaustion defense.” Jernigan, 304 F.3d at 1033. But since M r. Stephens does

not allege detrimental reliance on prison officials, we do not decide whether

equitable estoppel applies here. See id.

      In the alternative, M r. Stephens requests that his case be held in abeyance

to permit him to complete the grievance process for his unexhausted claims. This

procedure is foreclosed by Jones: “As a general matter, if a complaint contains

both good and bad claims, the court proceeds with the good and leaves the bad.”

127 S. Ct. at 924.

      Finally, M r. Stephens contends that the district court erred in dismissing his

claims against M r. Cody on statute-of-limitations grounds. He does not challenge


                                           -8-
the court’s conclusion that the limitations period for filing a § 1983 claim had

expired. Rather, he maintains that the longer period for filing a RICO claim had

not run at the time he filed his amended complaint naming M r. Cody as a

defendant and that the district court erred by dismissing his RICO claim for

failure to meet a “heightened pleading standard.” See Aplt. Reply Br. at 8-9.

Contrary to M r. Stephens’ argument, however, the district court dismissed his

RICO claim against M r. Cody because he did not allege any facts to entitle him to

a civil remedy under RICO. See 18 U.S.C. §§ 1962, 1964(c). M r. Stephens has

identified no allegations, and our review of the record has revealed none, to

satisfy those requirements. Accordingly, the district court did not err in

dismissing M r. Stephens’ claims against M r. Cody.

                                     Conclusion

      M r. Stephens’ motion for a temporary restraining order and order to show

cause is denied. W e have construed his objections to appellees’ brief as a reply

brief. M r. Stephens’ motion to proceed without prepayment of costs and fees was

granted by the district court. He is reminded that he is obligated to continue

making partial payments until the entire fee has been paid.

      The judgment of the district court is AFFIRMED.

                                                      Entered for the Court


                                                      John C. Porfilio
                                                      Circuit Judge


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