                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   December 3, 2007
                   UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                          FOR THE TENTH CIRCUIT


    LAFAYETTE STONE,

              Plaintiff-Appellant,

    v.                                                  No. 06-2336
                                              (D.C. No. CIV-05-1067 WJ/LCS)
    AARON ALBERT; CHRIS                                  (D. N.M.)
    SANCHEZ; FLOYD GONZALES;
    BLAIN WARRIOR; ROBERT
    FUENTES; FRANK MAESTAS;
    CRAIG FOSTER; JEREMY
    MAESTAS; MARCUS GULIN;
    ROY HARTMAN; RAY GONZALES;
    M. GARCIA; J. BACA;
    S. CORDOVA; SCOOTER;
    CHARLES POOLE; RUBEN
    PADILLA; LOUIS HERNANDEZ;
    SCOTT RICHTER; MIKE
    ALVARADO, MDC Corrections
    Officers; P. LAVILLA;
    JUDY LUJAN; CHRISTINA
    ROMERO, APD Officers; Two JANE
    DOES, Corrections Medical Service
    Nurses, all defendants in their
    individual capacities,

              Defendants-Appellees.


                           ORDER AND JUDGMENT *

*
       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not binding precedent, except under the doctrines of law of the case, res judicata,
                                                                       (continued...)
Before PORFILIO, ANDERSON, and BALDOCK, Circuit Judges.



      Plaintiff Lafayette Stone appeals from an order dismissing several claims in

this pro se prison civil rights action for failure to exhaust administrative remedies

under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). We affirm.

      Plaintiff brought this action alleging he was (1) subjected to excessive

force and then gratuitously beaten by correctional personnel and local police

during and after a general disturbance at the Bernalillo County Metropolitan

Detention Center (BCMDC) on March 5, 2003, and (2) thereafter denied adequate

medical care. He named several BCMDC personnel, three police officers, and

two nurses (“Jane Does”) as defendants. The magistrate judge granted leave to

proceed in forma pauperis, making it the court’s duty “to serve process for the

plaintiff [under] 28 U.S.C. § 1915(d),” Olsen v. Mapes, 333 F.3d 1199, 1204

(10th Cir. 2003). The judge directed the clerk to “issue summonses (notice and

waiver forms) to [the] named Defendants,” R. doc. 15, but these were returned by

just seven BCMDC officers. This largely unsuccessful effort to effect service by

waiver was the only means pursued under § 1915(d), and as a result the majority

of the named defendants were never served.


*
 (...continued)
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.

                                         -2-
      The served defendants filed an answer to the complaint. They denied the

factual allegations of wrongdoing and summarily asserted a host of affirmative

defenses. None of the latter specifically referred to a failure to exhaust available

remedies, though the answer did generally assert that “[t]his lawsuit is subject to

and/or barred by the Prison Litigation Reform Act and/or its state law equivalent,

NMSA § 33-2-11.” R. doc. 26, at 4. The next day, the magistrate judge issued an

order construing the answer as a motion to dismiss and setting a briefing schedule

for the matter. R. doc. 27.

      The served defendants did not submit a brief in support of dismissal, but

instead moved for summary judgment on the grounds that (1) they had nothing to

do with plaintiff’s medical care at BCMDC, and (2) as to the incident on March 5,

2003, plaintiff had not pursued available administrative remedies as required

under § 1997e(a). R. doc. 30. They attached a copy of BCMDC’s inmate

grievance procedure, an affidavit from BCMDC’s records custodian, and copies

of the many grievances plaintiff had filed at BCMDC, in support of their

contention that plaintiff could have, but had not, filed a grievance with respect to

the violence he now alleges occurred during the March 5, 2003 disturbance.

      Plaintiff did not respond to the substance of the motion, but sought an

extension of time “to seek counsel and to find witnesses.” R. doc. 31. The

magistrate judge granted a limited extension for responding to the motion. After

the second deadline passed, plaintiff filed a request for copies of court documents

                                         -3-
that he had lost and sought additional time for discovery and to respond to the

summary judgment motion, citing practical difficulties relating to a prison

transfer and his segregated confinement. R. doc. 34.

      The next day, the magistrate judge issued a report and recommendation.

The judge acknowledged defendants’ summary judgment motion, but, in light of

circuit precedent holding exhaustion to be part of a plaintiff’s pleading burden,

see Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1210-12 (10th Cir. 2003),

abrogated by Jones v. Bock, 127 S. Ct. 910, 921-22 (2007), still treated the matter

formally as one of dismissal. Nevertheless, the judge did not merely assess the

pleadings, but considered the administrative materials submitted in support of

defendants’ motion. Noting that (1) all of plaintiff’s grievances were directed at

his medical treatment rather than the incident of March 5, 2003, and (2) the

served defendants had nothing to do with plaintiff’s medical care, 1 the judge

recommended that all federal claims against the served defendants be dismissed

for lack of exhaustion and supplemental jurisdiction be declined over any state

law claims. R. doc. 35, at 4-6. Plaintiff filed objections to the recommendation

and a (procedurally inapt) notice of appeal as well. The district court summarily

adopted the recommendation and dismissed the case. Plaintiff did not file a

second notice of appeal from the dismissal order.

1
       Medical care at BCMDC was handled by a private contractor and plaintiff
did not allege that the defendant correctional officers in any way interfered with
the care he was provided by the contractor’s employees.

                                         -4-
                          Jurisdictional Complications

      Defendants insist this appeal should be dismissed because plaintiff’s notice

of appeal relates to the magistrate judge’s recommendation, and “appellate courts

are without power to hear appeals directly from orders of federal magistrates.”

Niehaus v. Kan. Bar Ass’n, 793 F.2d 1159, 1165 (10th Cir. 1986), superseded by

statute on other grounds as stated in DeVargas v. Mason & Hanger-Silas Mason

Co., 911 F.2d 1377 (10th Cir. 1990); see Phillips v. Beierwaltes, 466 F.3d 1217,

1222 (10th Cir. 2006). We agree that appellate review of the district court’s

disposition of the case cannot be grounded on plaintiff’s notice of appeal from the

magistrate judge’s recommendation.

      But that is not the end of the matter. Other documents, if timely filed and

substantially compliant with Fed. R. App. P. 3(a), may serve as substitute notices

of appeal. See Rodgers v. Wyo. Att’y Gen., 205 F.3d 1201, 1204 n.3 (10th Cir.

2000) (collecting cases), overruled on other grounds as stated in Moore v. Marr,

254 F.3d 1235, 1239 (10th Cir. 2001). In Haney v. Addison, 175 F.3d 1217

(10th Cir. 1999), this principle was applied to circumstances virtually identical to

those present here: a pro se petitioner had filed a notice of appeal from an

unfavorable magistrate judge recommendation and then, “instead of filing an

amended notice of appeal [from the district court order adopting the

recommendation], petitioner filed a pro se docketing statement with this court in

connection with his earlier appeal.” Id. at 1219. The docketing statement in the

                                         -5-
instant case was filed within thirty days of the district court’s order and identifies

the appellant and the district court case from which appeal is taken. The

appellees are not separately named on the statement itself, but their identities are

reflected in the attachments. While–as in Haney–the materials were filed “in

connection with [the] earlier appeal” from the magistrate judge’s

recommendation, in light of the district court’s unqualified adoption of that

recommendation there can be no realistic claim of prejudicial surprise or

uncertainty regarding the subject of this appeal. Following Haney, we look to the

docketing statement to “conclude that [plaintiff] filed a timely notice of appeal of

the district court’s final order, and therefore that we have jurisdiction under

28 U.S.C. § 1291.” Haney, 175 F.3d at 1219.

      One other potential jurisdictional impediment should be addressed briefly.

Ordinarily, an order resolving fewer than all claims against all defendants is not

final and hence not subject to appeal without the requisite certification under

Fed. R. Civ. P. 54(b). See, e.g., Hutchinson v. Pfeil, 105 F.3d 566, 569 (10th Cir.

1997). Here, however, the medical-care claims unresolved in the dismissal order

under review involved defendants who had not been served. “These unserved

defendants were never made parties to this lawsuit. It was not necessary for

the district court to enter an order dismissing them prior to its entry of the order

and judgment [from which appeal was taken].” Bristol v. Fibreboard Corp.,

789 F.2d 846, 847 (10th Cir. 1986).

                                          -6-
                            Merits of Dismissal Order

      Following the disposition of this case, the Supreme Court clarified that

exhaustion under § 1997e(a) is a matter of affirmative defense to be asserted and

substantiated by the defendant rather than a threshold pleading requirement for

the plaintiff, see Jones, 127 S. Ct. at 921, thereby abrogating the circuit precedent

for dismissal on the pleadings specifically cited by the magistrate judge. But, as

discussed above, this case was not dismissed simply because the pleadings failed

to affirmatively demonstrate exhaustion. Defendants raised lack of exhaustion as

an affirmative defense in their motion for summary judgment, submitting an

affidavit and related documentation to support the motion and giving plaintiff an

opportunity to address the issue. If the resulting evidentiary record was sufficient

to establish as a matter of law that the claims in question had not been exhausted,

dismissal would be proper under traditional summary-judgment principles, and

Jones’ rejection of special pleading requirements for exhaustion would be legally

irrelevant.

      The affidavit from the BCMDC records custodian states that plaintiff “did

not file any grievance, and thus did not avail himself of and exhaust available

administrative remedies per [the attached BCMDC inmate grievance policy],

relative to the alleged incidents of excessive force that he claims were perpetrated

upon him . . . on or about March 5, 2003.” R. doc. 30, Ex. A at 2. Copies of the

forty-six grievances from plaintiff, attached to the affidavit, see id., Exs. A-02 to

                                         -7-
A-47, bear out that statement. Unless controverted, this showing was sufficient to

warrant dismissal of the claims against the served defendants.

      In his opening brief on appeal, plaintiff insisted he could have proved

exhaustion if allowed to obtain paperwork from a lawyer he had at one time

retained to pursue this lawsuit. He later submitted a follow-up letter attaching

documents he claims satisfy the exhaustion requirement: a contingency fee

agreement to retain the aforementioned attorney; two documents, from a different

law firm, relating to an ongoing class action over conditions at BCMDC; and a

handwritten “Letter of Intent to File Civil Suit” dated October 20, 2003, which

plaintiff states he mailed to the parties in this case. Letter filed May 14, 2007,

Exs. A to D. Not one of these documents is a BCMDC grievance, see R. doc. 30,

Ex. A-01, a fact that should be clear to someone who has filed nearly fifty such

grievances.

      Plaintiff also argues that he was not, in any event, required to exhaust his

administrative remedies because he had retained an attorney to file this case and

therefore did not fall within the compass of the PLRA. This is an odd argument,

in that he ultimately did file pro se. In any event, there is no qualification that a

prisoner proceed pro se, or in forma pauperis for that matter, in order to trigger

the exhaustion requirement of § 1997e(a); the statute unqualifiedly directs that

“[n]o action shall be brought with respect to prison conditions . . . by a prisoner




                                           -8-
confined in any jail, prison, or correctional facility until such administrative

remedies as are available are exhausted.” (Emphasis added.)

      Plaintiff also appears to argue that the need to recover lost paperwork

provided good cause for his failure to timely respond to defendants’ motion for

summary judgment. The point is immaterial. The magistrate judge did not rely

on this procedural omission but resolved defendants’ motion on its legal merit.

See R. doc. 35, at 4. Moreover, as noted above, the documentation plaintiff

claims demonstrates exhaustion clearly does not–leaving defendants’ otherwise

legally conclusive evidence on the issue uncontroverted. Finally, construing

plaintiff’s request for an extension of time to oppose summary judgment as a

motion under Fed. R. Civ. P. 56(f), and overlooking the lack of the formal

affidavit required under that rule, see DiCesare v. Stuart, 12 F.3d 973, 979 (10th

Cir. 1993) (noting affidavit requirement and holding pro se party must follow

procedures governing Rule 56(f) motions), plaintiff’s perfunctory and generic

assertion that he “need[ed] more discovery,” R. doc. 34, fell far short of the

substantive requirements of the rule. See Comm. for the First Amendment v.

Campbell, 962 F.2d 1517, 1523 n.7 (10tth Cir. 1992) (holding Rule 56(f) not

satisfied by “[m]erely stating that more discovery is needed”); see also Trask v.

Franco, 446 F.3d 1036, 1041-42 (10th Cir. 2006) (discussing requisite substance

and specificity of Rule 56(f) affidavit). He did not specify what evidence he

could obtain that would save his claims against defendants; indeed, as noted

                                          -9-
above, the evidence in defendants’ possession (as well as evidence plaintiff has

submitted from other sources) affirmatively undercuts those claims.

       The served defendants’ summary judgment motion seeking dismissal, on

exhaustion grounds, of all claims in which they were implicated was substantively

and procedurally valid. While the district court formally framed its disposition as

one under Fed. R. Civ. P. 12(b), that disposition was in practical effect one under

Rule 56 and may be upheld as such in light of our authority to “affirm on any

legal ground supported by the record.” Grantham v. Ohio Cas. Co., 97 F.3d 434,

435 (10th Cir. 1996).

       The judgment of the district court is AFFIRMED. The mandate shall issue

forthwith. Appellant’s motion to proceed without prepayment of costs and fees is

granted. Appellant is reminded to continue make partial payments until the fee is

paid in full.


                                                    Entered for the Court



                                                    Bobby R. Baldock
                                                    Circuit Judge




                                        -10-
