                                                                                    FILED
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             October 23, 2009
                                   TENTH CIRCUIT
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court

MILTON VERAN WILLIAMS,

              Plaintiff – Appellant,

v.                                                            No. 09-7043
                                                              (E.D. Okla.)
MARTY SIRMON, Warden; JUSTIN                    (D. Ct. No. 6:07-CV-00124-RAW-SPS)
JONES, Director of DOC; STEVE
MOLES; CHESTER MASON; BATTLE,
Sgt.; DAVIS, Sgt.; BESSY GREENWAY;
BOBBY BOONE; SCOTT CROW;
DEBBIE MORTON,

              Defendants – Appellees.




                              ORDER AND JUDGMENT*


Before HARTZ, EBEL, and O’BRIEN, Circuit Judges.


       After examining the briefs and the appellate record, this panel concludes 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). This case is submitted for decision without oral

argument.

       *
          This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation – (unpublished). Id.
       Milton Veran Williams, an Oklahoma state prisoner appearing pro se,1 appeals

from the dismissal of his civil rights complaint brought pursuant to 42 U.S.C. § 1983.

The district court dismissed for failure to exhaust administrative remedies. We affirm.

                               I.       BACKGROUND

       On April 27, 2007, Williams filed a pro se complaint pursuant to 42 U.S.C. § 1983

against Marty Sirmons, the Warden of the Oklahoma Department of Corrections

(ODOC), and Justin Jones, the Director of the ODOC. He filed an amended complaint on

November 12, 2007, adding ten additional employees of the ODOC as defendants in their

official and/or individual capacities.2 The district court granted Williams’ motion to

proceed in forma pauperis (ifp).

       Williams alleged the Defendants violated his constitutional rights by subjecting

him to “racial discrimination, deliberate indifference treatment and cruel and unusual

punishment.” (R. Vol. I at 101.) He asserted three counts: (1) Defendants pursued

frivolous misconduct violations against him in reprisal for his exercise of the ODOC

grievance procedures; (2) Defendants conspired to have bodily injury inflicted upon him

in retaliation for his exercise of the ODOC grievance procedures; and (3) Defendants

denied him adequate and prompt medical treatment and falsified his medical records to


       1
        We liberally construe Williams’ pro se filings. See Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
       2
         The additional defendants are: Steve Moles, Chester Mason, Sergeant Battle,
Sergeant Davis, Bessy Greenway, Bobby Boone, Scott Crow, Debbie Morton, Marty
Rucker and Marion Bess. The court dismissed Rucker and Bess due to Williams’ failure
to serve them.


                                                2
conceal injuries he sustained. Williams said he sought administrative relief but the

ODOC employees “refuse[d] to adhere to [ODOC regulations] in order to impede

administrative exhaustion.” (Id. at 111.)

       The Defendants filed a motion to stay the proceedings and requested an order

requiring a special report pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978).3

The magistrate judge stayed the proceedings and ordered a Martinez report.

       Defendants submitted a lengthy Martinez report detailing the facts and

circumstances surrounding Williams’ allegations. They also filed a motion to dismiss or,

in the alternative, a motion for summary judgment arguing the court lacked jurisdiction

because Williams failed to exhaust his administrative remedies.4 They also argued: (1) to

the extent Williams was challenging the loss of his earned credits, such a challenge may

only be brought in a habeas proceedings; (2) they were entitled to Eleventh Amendment

immunity and qualified immunity; (3) Williams did not allege most of the Defendants

were personally involved in any of the alleged constitutional violations; and (4)

Williams’ allegations are conclusory and fail to state a claim upon which relief may be

granted.


       3
        In Martinez, this Court expressly approved the practice of a federal district court
ordering prison officials to undertake an investigation of the incident that formed the
subject matter of the plaintiff’s complaint in order to provide the court with additional
information to aid in processing the complaint. 570 F.3d at 319.
       4
         The motion was submitted on behalf of Defendants Jones, Sirmons, Moles,
Mason, Battle, Davis, Boone, Crow and Morton. Defendant Greenway subsequently
filed a motion to dismiss and/or motion for summary judgment making the same
arguments as the other Defendants.


                                                 3
       With his response to the Defendants’ motion to dismiss, Williams submitted a

sworn affidavit stating, inter alia, he “ma[de] numerous futile attempts to exhaust the

adequate state remedies available to [him], but was impeded by Defendants.” (R. Vol. I

at 604.) He also claimed he filed a grievance pertaining to his transfer to a maximum

security facility but ODOC officials did not respond to his grievance so he “went directly

to [ODOC Deputy Director of Security and Investigation,] Scot[t] Crow.” (Id.)

       The district court granted the Defendants’ motion and dismissed the action in its

entirety stating “[t]here is no evidence that plaintiff has exhausted any of the claims

presented [in] this lawsuit.”5 (Id. at 892.) The court did not consider the Defendants’

alternative grounds for dismissal, but did note “[t]o the extent the defendants are sued in

their official capacities . . . plaintiff’s claims are barred by the Eleventh Amendment.”

(Id. at 887 n.1.) The court also noted “plaintiff’s claims regarding the disciplinary

proceedings should have been filed as a habeas corpus action . . . .” (Id. at 890.)

       Williams filed a timely notice of appeal and a motion to proceed in forma pauperis

(ifp) on appeal. The district court did not respond to that request in a timely fashion;

thus, we deem the request denied. Williams filed a renewed motion to proceed ifp with

this Court. On August 6, 2009, the Clerk of this Court issued an Order assessing costs

and fees and directing Williams to make partial payments.

                                II.       DISCUSSION

       The Prison Litigation Reform Act (PLRA) requires exhaustion of all “available”

       5
        The court noted in deciding a motion to dismiss on nonexhaustion, it could
consider the administrative materials submitted by the parties.


                                                 4
remedies. See 42 U.S.C. § 1997e(a). Oklahoma likewise requires exhaustion. See Okla.

Stat. tit. 57, § 564 (“An inmate in the custody of the Department of Corrections shall

completely exhaust all available administrative remedies on all potential claims against . .

. the Department of Corrections . . . or an employee of the state . . . prior to initiating an

action in district court.”); Okla. Stat. tit. 57, § 566(A)(1) (“Any action by an inmate

initiated against any person . . . [or] the Department of Corrections . . . may be: [ ]

Dismissed with or without prejudice, by the court on its own motion or on a motion of the

defendant, if all administrative and statutory remedies available to the inmate have not

been exhausted in a timely manner[.]”). Williams claims he exhausted all available

administrative remedies. We review the district court’s dismissal of Williams’ complaint

de novo. See McBride v. Deer, 240 F.3d 1287, 1289 (10th Cir. 2001).

       In Hemphill v. New York, the Second Circuit adopted “a three-part inquiry . . . in

cases where a prisoner plaintiff plausibly seeks to counter defendants’ contention that the

prisoner has failed to exhaust available administrative remedies as required by the PLRA,

42 U.S.C. § 1997e(a).” 380 F.3d 680, 686 (2d Cir. 2004). The first step is to “ask

whether administrative remedies were in fact available to the prisoner.” Id. (quotations

omitted). The next step is to “inquire as to whether the defendants may have forfeited the

affirmative defense of non-exhaustion by failing to raise or preserve it, or whether the

defendants’ own actions inhibiting the inmate’s exhaustion of remedies may estop one or

more of the defendants from raising the plaintiff’s failure to exhaust as a defense.” Id.

(citations omitted). Finally:

       If the court finds that administrative remedies were available to the

                                                   5
       plaintiff, and that the defendants are not estopped and have not forfeited
       their non-exhaustion defense, but that the plaintiff nevertheless did not
       exhaust available remedies, the court should consider whether special
       circumstances have been plausibly alleged that justify the prisoner’s failure
       to comply with administrative procedural requirements.

Id. (quotations omitted). Williams contends we should apply this three-part inquiry.

       We have not adopted this approach, see Escobar v. Reid, 240 Fed. Appx. 782, 785

n.3 (10th Cir. 2007) (unpublished), and we do not expressly adopt it here.6 We note,

however that administrative remedies were available to Williams. To be “available”

under the PLRA, a remedy must afford “the possibility of some relief for the action

complained of.” Booth v. Churner, 532 U.S. 731, 738 (2001). The ODOC has adopted

policies and procedures which, if Williams utilized, would have afforded the possibility

of some relief. See Department Offender Disciplinary Procedure, OP-060125, § V,

available at http://www.doc.state.ok.us/offtech/op060125.pdf (last visited Oct. 13, 2009);

Offender Grievance Process, OP-090124, available at

http://www.doc.state.ok.us/offtech/op090124.pdf (last visited Oct. 13, 2009).

       Williams claims the Defendants forfeited the defense of non-exhaustion by

inhibiting him from exhausting his administrative remedies. We have, in an unpublished

case, afforded a prisoner relief where the district court did not consider whether the

defendants’ actions may have inhibited his exhaustion of administrative remedies. See

Escobar, 240 Fed. Appx. at 784. Escobar is neither binding precedent nor apposite.

       Escobar filed suit against multiple prison officials alleging they mistreated him “in

       6
       Unpublished decisions are not binding precedent. 10th Cir. R. 32.1(A). We
mention Escobar as we would any other non-precedential authority.


                                                 6
retaliation for grievances and prior lawsuits he filed.” Id. at 783. On his complaint, he

“checked the box indicating he did not exhaust his available administrative remedies.”

Id. “In explanation, Escobar attached a motion from a lawsuit he filed in 2003 in which

he asked the district court to allow him to exhaust his administrative remedies. Escobar

also alleged he was restricted to filing one grievance per month . . . and had his legal

documents destroyed during repeated cell shake-downs by the defendants.” Id. The

magistrate judge ordered Escobar to show cause why his complaint should not be

dismissed for failure to exhaust administrative remedies. In response, Escobar

“explained that when he attempts to file grievances based on excessive force, they are

denied” and attached a letter from the Warden restricting Escobar “to filing one grievance

per month for six months based on Escobar’s continued filing of frivolous grievances.”

Id. Escobar claimed to have requested removal of the restriction after the six-month

period, but to no avail. “Escobar’s response [to the order to show cause] also contained

allegations of threats and physical abuse by prison officials in reaction to his filing

grievances, in addition to the confiscation and destruction of his materials during cell

shake-downs.” Id. at 784. The district court “determined Escobar was not denied access

to the [prison’s] grievance procedure and he failed to satisfy his burden to allege with

specificity how he has exhausted administrative remedies for all of the claims and issues

raised in his complaint.” Id. We reversed the dismissal of Escobar’s complaint and

remanded for consideration of “whether Escobar’s . . . allegations of retaliation and

destruction of papers prevented him from exhausting administrative remedies.” Id. at

785. We noted “[c]ourts . . . ‘are obligated to ensure that any defects in exhaustion were

                                                  7
not procured from the action or inaction of prison officials.’” Id. at 784 (quoting Aquilar-

Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007)).

       In his reply brief, Williams argues prison officials threatened him with physical

abuse which prevented him from exhausting his administrative remedies. He never

raised this argument in the district court; nor did he ever claim the Defendants prevented

him from filing grievances, either by refusing to accept his grievances or destroying his

papers. In his complaint, Williams alleged he had sought administrative relief but the

ODOC employees “refuse[d] to adhere to [ODOC regulations] in order to impede

administrative exhaustion.” (R. Vol. I at 111.) In response to the Defendants’ motion to

dismiss/motion for summary judgment, Williams submitted a sworn affidavit in which he

alleged he “ma[de] numerous futile attempts to exhaust the adequate state remedies

available to me, but was impeded by Defendants.” (Id. at 604.) He also claimed he filed

a grievance pertaining to his transfer to a maximum security facility but ODOC officials

did not respond to his grievance so he “went directly to [ODOC Deputy Director of

Security and Investigation,] Scot[t] Crow.” (Id.) These allegations are of an entirely

different nature than those in Escobar and, even viewed in the light most favorable to

Williams, do not suggest his failure to exhaust was procured from the action or inaction

of the Defendants.

       Moreover, Williams’ complaint is subject to the requirements set forth in Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, --U.S.--, 129 S.

Ct. 1937 (2009). “To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

                                                    8
Iqbal, 129 S. Ct. at 1949 (quoting Bell, 550 U.S. at 570). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. Even charitably

read, Williams’ complaint fails to meet this standard. In addition, he fails to “plead that

each Government-official defendant, through [his] own individual actions, has violated

the Constitution,” which is a requirement under Iqbal. See id. at 1948.

       We AFFIRM the decision of the district court. We DENY Williams’ motion to

proceed ifp and order him to immediately remit the unpaid balance of the filing fee.

                                              Entered by the Court:

                                              Terrence L. O’Brien
                                              United States Circuit Judge




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