No. 6:13-CV-00015-RAW-SPS (E.D. Okla.)
MATHESON, McKAY, and O'BRIEN, Circuit Judges.
ORDER AND JUDGMENT [*]
M. Matheson, Jr. Circuit Judge.
Williams, an Oklahoma inmate proceeding pro se, sued
defendants in their individual and official capacities under
42 U.S.C. § 1983, alleging violations of procedural due
process, the First Amendment, and the Eighth Amendment. The
district court dismissed defendant Angela Brannon without
prejudice because she was never served. It dismissed the
remaining defendants, concluding that Mr. Williams had failed
to exhaust his administrative remedies under the Prison
Litigation Reform Act ("PLRA"). The court also
imposed a strike against Mr. Williams under 28 U.S.C. §
1915(g). Exercising jurisdiction under 28 U.S.C. § 1291,
we affirm in part, reverse in part, and remand for further
Exhaustion Under the PLRA
PLRA provides that "[n]o action shall be brought with
respect to prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner confined in
any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted."
42 U.S.C. § 1997e(a). "There is no question that
exhaustion is mandatory under the PLRA and that unexhausted
claims cannot be brought in court." Jones v.
Bock, 549 U.S. 268, 211 (2007).
of administrative remedies serves two main purposes."
Woodford v. Ngo, 548 U.S. 81, 89 (2006). The first
is to protect agency authority, both by giving the agency
"an opportunity to correct its own mistakes with respect
to the programs it administers before it is haled into
federal court, " and by discouraging disregard of agency
procedures. Id. (internal quotation marks omitted).
The second is to promote efficiency by permitting claims,
where possible, to be settled at an administrative level;
and, even where this is not possible, to develop "a
useful record for subsequent judicial consideration."
Id. (internal quotation marks omitted).
aspects of the exhaustion requirement are pertinent here.
the administrative grievance must have alleged the same facts
as the court complaint. A court claim that was not alleged at
the administrative level could not have been exhausted there.
Without this requirement, the prison would not have had a
chance to correct an error. See id. at 94
("Requiring proper exhaustion . . . gives prisoners an
effective incentive to make full use of the prison grievance
process and accordingly provides prisons with a fair
opportunity to correct their own errors."). Although
"[t]he level of detail necessary in a grievance to
comply with the grievance procedures will vary from system to
system and claim to claim . . . it is the prison's
requirements . . . that define the boundaries of proper
exhaustion." Jones, 549 U.S. at 218.
the plaintiff must follow the prison's grievance
procedures. See Woodford, 548 U.S. at 90-91
("Proper exhaustion demands compliance with an
agency's deadlines and other critical procedural rules
because no adjudicative system can function effectively
without imposing some orderly structure on the course of its
review de novo a district court's finding that an inmate
failed to exhaust his administrative remedies. Thomas v.
Parker, 609 F.3d 1114, 1117 (10th Cir. 2010).
2. Oklahoma Offender Grievance Policy
Oklahoma Department of Corrections (ODOC) has an Offender
Grievance Policy (OGP). In general terms, the policy requires
the inmate to (1) speak informally with a case manager or
staff member; (2) submit a request to staff (RTS)
("Informal resolution requires communicating with staff,
including submitting a 'Request to Staff', ' if
the complaint is not resolved. The informal resolution
process precedes submitting a grievance." OGP IV, R.,
Vol. 1 at 217); (3) file a grievance; and (4) appeal the
denial of the grievance. The RTS must state "completely,
but briefly the problem, " and the "statement must
be specific as to the complaint, dates, personnel involved
and how the offender was affected." OGP IV(B),
id. at 218. "[O]nly one issue or incident is
allowed per form." Id. The four steps
constitute the grievance process under the OGP. After trying
to resolve the matter informally at steps one and two, step
three is the point at which the grievance is filed.
to Mr. Williams, on August 22, 2012, Corrections Officer
Kidwell slammed his left elbow in his prison cell food port
opening, causing serious injuries. This incident led to four
grievances and a disciplinary proceeding.
completing step one (informal discussion) and step two
(submit an RTS) of the OGP process, Mr. Williams filed his
first grievance, No. 2012-1001-00496-G ("No. 496"),
on August 22, 2012. It demanded immediate medical treatment
for the elbow injury allegedly inflicted by Officer Kidwell.
He asked to see a doctor as soon as possible and to have
photographs taken of his injury. See R., Vol. 2 at
172. The grievance coordinator spoke with Mr. Williams that
same day and scheduled an appointment with medical services
and also arranged for photographs. Id. at 171.
August 29, 2012, after completing steps one and two of the
OGP process, Mr. Williams filed his second grievance, No.
2012-1001-00505-G ("No. 505"), against Warden Tim
Wilkinson concerning the incident with Officer Kidwell:
"On [August 22], I was physically assaulted by C/O
Kidwell by slamming my [left] elbow in the food port with
force. I received injuries to my arm." Id. at
175. He asked the warden to "[p]lease investigate this
and rectify the issue." Id. The warden
responded the same day and told Mr. Williams that
"[t]his matter is under investigation and appropriate
action will be taken." Id. at 176. A formal
response, signed by the warden a few days later and provided
to Mr. Williams, stated: "The offender's complaint
is that he was physically assaulted by C/O Kidwell on
08/22/2012. The offender requested that the matter be
investigated. The offender's request is GRANTED."
Id. at 174. The response did not say what steps were
or would be taken to "rectify the issue."
No. 2012-1001-00534-G ("No. 534"), filed after
steps one and two of the OGP process, concerned an RTS in
which Mr. Williams claimed "Nurse Misconduct"
against Ms. Brannon. See id. at 194. According to
Mr. Williams, after the alleged assault by Officer Kidwell on
August 22, 2012, he requested medical treatment for his elbow
injury, but "[t]he nurse (Ms. Brannon) came to my door
and look[ed] through the window, ask[ed] a few questions and
walk[ed] away without any treatment." Id., Vol.
1 at 29. The next day, he submitted the RTS to defendant
Kathy Miller, a health services administrator. On September
11, 2012, Mr. Williams filed grievance 534, in which he
complained there had been no response to the RTS. See
id., Vol. 2 at 193.
September 12, 2012, the grievance was returned as deficient
for two reasons: (1) Mr. Williams failed to provide a
"completed Request to Staff OP-090124D (R 5/11), "
id. at 192, and (2) he had not waited thirty days
for a response to his August 23 RTS, id.;
see OGP IV(B), id., Vol. 1 at 218 ("If
there has been no response in 30 calendar days of submission,
the offender may file a grievance to the reviewing authority
with evidence of submitting the 'Request to Staff' to
the proper staff member.")
Williams was told he could either resubmit the grievance
after September 23, or file a new grievance within ten days
along with evidence that the RTS had been submitted on August
23. See OGP V(A), id. at 219 ("If the
offender does not follow instructions as explained in this
procedure and on the grievance forms, the grievance may be
returned unanswered for proper completion. If allowed, the
offender must properly re-submit the grievance within ten
calendar days of receipt."). Mr. Williams chose the