                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                      UNITED STATES COURT OF APPEALS                 May 11, 2010
                                                                 Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                   Clerk of Court




    ADAM BURKE,

                Plaintiff-Appellant,

    v.                                                    No. 09-1361
                                             (D.C. No. 1:08-CV-00140-LTB-MEH)
    GARFIELD COUNTY SHERIFF’S                              (D. Colo.)
    DEPARTMENT; LOU VALLARIO,
    Sheriff of Garfield County Sheriff’s
    Department, in his official capacity;
    SCOTT DAWSON, a Commander in
    the Garfield County Sheriff’s
    Department, in his official capacity,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before LUCERO, PORFILIO, and MURPHY, Circuit Judges.


         Plaintiff Adam Burke brought this civil rights action seeking redress for

two incidents in which, he alleges, staff at the Garfield County Jail improperly



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
used pepperball devices and a restraint chair on him while he was held at the jail

as a pretrial detainee. Mr. Burke did not sue the jail officers who were directly

involved, but sought to hold the Garfield County Sheriff’s Department, Sheriff

Vallario, and Commander Dawson responsible for the officers’ actions based on

theories of derivative liability, alleging that inadequacies in training, supervision,

and jail policy had led to the two incidents. The defendants moved for summary

judgment arguing, in pertinent part, that Mr. Burke had failed to exhaust available

administrative remedies as required by 42 U.S.C. § 1997e(a). The district court

agreed and dismissed the action. Mr. Burke now appeals. On de novo review,

see Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007), we

affirm the district court’s ruling that Mr. Burke’s federal civil rights claims are

subject to dismissal for failure to exhaust, 1 though we remand for modification of

its order to clarify that the dismissal of these claims is without prejudice.

      Only a brief summary of the alleged facts relevant to the exhaustion issue

need be recounted here. The two incidents in question took place on January 24,

1
        Mr. Burke’s complaint also includes conclusory references to Colorado
Constitutional provisions in the headings of some of his claims. To the extent
this is an effort to assert distinct non-federal claims, they would not be subject to
the exhaustion requirement in § 1997e(a), which applies to “action[s] . . . brought
with respect to prison conditions under [42 U.S.C.] section 1983 . . . or any other
Federal law.” But such an effort would necessarily fail for another reason: there
is no implied cause of action under the state constitution where, as here, other
remedies (particularly federal civil rights suits) are potentially available for the
same alleged wrongdoing. See Arndt v. Koby, 309 F.3d 1247, 1255 (10th Cir.
2002) (relying on Bd. of County Comm’rs v. Sundheim, 926 P.2d 545, 553
(Colo. 1996) (en banc)).

                                          -2-
2006, and March 4, 2006. In the first, officers shot pepperballs into Mr. Burke’s

cell, hitting his body in several places, and then confined him in a restraint chair

while ignoring his requests for medical attention. In the second, Mr. Burke was

confined for a lengthy time in the restraint chair as punishment–a use for which

the chair is not authorized–after a confrontation with a deputy. He also claims

that officers used excessive force during this incident, injuring his shoulder. The

officers’ versions of these events differ, and include additional circumstances to

justify use of the measures they employed, but factual disputes in this regard are

not material to the dispositive exhaustion analysis.

      In neither instance did Mr. Burke submit a grievance within the

seventy-two hours allotted by jail policy. Indeed, the grievance forms that he

insists exhausted his administrative remedies were not submitted for several

months. 2 More importantly for present purposes, they do not, substantively,


2
       Mr. Burke argues that the untimeliness of his grievances should not defeat
exhaustion because they were not denied on this procedural basis, citing Patel v.
Fleming, 415 F.3d 1105, 1111 (10th Cir. 2005). We do not refer to the long
delays here to hold that his untimeliness per se negates exhaustion. Rather, as
should be apparent from our ensuing discussion, our disposition turns on the lack
of a substantive connection between the jail forms under review and the incidents
to which Mr. Burke insists they relate–a disconnect underscored by the absence of
any remotely suggestive chronological tie. In the same vein, we need not address
Mr. Burke’s contention that jail personnel are responsible for his failure to
complete the review process for the grievances (by withholding their responses
until he had been transferred to another facility). Again, our agreement with the
district court that the forms he filed substantively failed to exhaust his claims
obviates consideration of any additional, procedural deficiency that may or may
not defeat exhaustion here.

                                          -3-
constitute grievances relating to the two incidents that are the focus of the

pleadings in this case.

      The grievance form filed June 28, 2006, which Mr. Burke insists exhausted

his clams relating to the January 24, 2006, pepperball/restraint chair incident, did

not even refer to the incident. Rather, it complained generally about the “[j]ail’s

use of tasers and pepper spray and pepperballs . . . where such drastic force is not

called for and without adequate medical screening or supervision,” noting that

Mr. Burke “ha[s] been threate[ne]d with unjust use of one or more of these

devices and this could happen again.” Aplt. App. tab 15 at 1. The January 24

incident–which did not involve the tasers or pepper spray mentioned in the

grievance, and did involve a restraint chair not mentioned in the grievance–is

neither referenced by date nor alluded to by factual circumstances. Moreover, the

grievance does not even complain that any of the cited types of force had actually

been used on Mr. Burke, which would have been the obvious complaint had the

grievance related to the use of pepperballs and the restraint chair on January 24.

Rather, it complains more generally about being subject to the threat of such force

(at unspecified times, in unspecified ways) and the continuing existence of that

threat. We agree with the district court that the timing and general terms of the

June 28 grievance did not “provide[] [jail] officials with enough information to

investigate and address [Mr. Burke’s] complaint” about the January 24 incident,




                                          -4-
Kikumura v. Osagie, 461 F.3d 1269, 1285 (10th Cir. 2006), abrogated on other

grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).

      The only form relating to the March 4 incident involving the restraint chair,

filed July 7, 2006, is also clearly deficient, but in a different way. While it does

refer to the incident, it does not charge that use of the chair was in any way

improper nor does it request an investigation or seek other redress entailing such

a charge. Rather, it is just a request to view a videotape recording of the time he

spent restrained in the chair and that the tape be saved. Aplt. App. tab 18. At

most, it suggests that, upon viewing the videotape, Mr. Burke might have decided

to follow up with an actual grievance complaining about the incident depicted

therein, but that never happened. Again, we agree with the district court that the

July 7 grievance form did not exhaust Mr. Burke’s current claims seeking redress

for improper use of the restraint chair on March 4.

      Mr. Burke has one more tack to take in opposing the dismissal of his action

under § 1997e(a). He notes that under the Colorado Department of Corrections

(DOC) regulation governing grievances, “discipline/reprimand [of DOC staff],

damages for pain and suffering, and exemplary or punitive damages are not

remedies available to offenders.” 3 DOC Admin. Reg. No. 850-04(III)(I), found at


3
      Mr. Burke does not explain how the DOC regulation governs grievance
procedures in a county jail, “a facility not run by the DOC.” Beecroft v. People,
874 P.2d 1041, 1045 n.12 (Colo. 1994). But we will assume for the sake of his
argument that it does.

                                          -5-
https://exdoc.state.co.us/secure/comboweb/weblets/index.php/regulations/home.

He insists that in light of these limitations on relief, the grievance process should

not be considered an “available remedy” subject to the exhaustion requirement

under § 1997e(a). The governing case law does not support this argument.

      While exhaustion presupposes some administrative remedy, it does not turn

on the availability of any particular relief (including the relief a prisoner later

seeks in court). So long as an administrative decision maker does not “lack[]

authority to provide any relief or to take any action whatsoever in response to a

complaint,” “Congress has mandated exhaustion clearly enough, regardless of the

[nature of the] relief offered through administrative procedures.” Booth v.

Churner, 532 U.S. 731, 736, 741 (2001) (emphasis added); see also Porter v.

Nussle, 534 U.S. 516, 524 (2002); Beaudry v. Corr. Corp. of Am., 331 F.3d 1164,

1167 (10th Cir. 2003). The regulation quoted by Mr. Burke also clearly provides

an available remedy in this respect, requiring authorities to afford: “A

meaningful response, action, or redress requested by the offender grievant . . .

which may include modification of institutional policy . . . or assurance that abuse

will not recur.” DOC Admin. Reg. No. 850-04(III)(I).

      Finally, we note that the district court did not specify whether its dismissal

was with or without prejudice. As to the federal civil rights claims dismissed for

lack of exhaustion, our case law makes clear that the disposition should be

without prejudice. See, e.g., Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir.

                                           -6-
2009) (remanding case to district court to clarify that its dismissal of unexhausted

claims was without prejudice); Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134,

1139-40 (10th Cir. 2005) (same). As to any distinct state constitutional claims,

however, their dismissal for the substantive deficiency explained in footnote one

above would properly be with prejudice.

      The judgment of the district court dismissing the action is AFFIRMED, but

the case is REMANDED with directions to clarify the nature of the dismissal in

accordance with the principles expressed herein.


                                                    Entered for the Court



                                                    John C. Porfilio
                                                    Circuit Judge




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