Free Motion for Leave - District Court of Colorado - Colorado

Case 1:03-cv-01959-MSK-PAC

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151 Fed.Appx. 630 151 Fed.Appx. 630, 2005 WL 2423724 (C.A.10 (Colo.)) (Cite as: 151 Fed.Appx. 630)

[1] Civil Rights 78 Briefs and Other Related Documents This case was not selected for publication in the Federal Reporter.Please use FIND to look at the applicable circuit court rule before citing this opinion. Tenth Circuit Rule 36.3. (FIND CTA10 Rule 36.3.) United States Court of Appeals,Tenth Circuit. Orlando Cortez CLARK, Plaintiff-Appellant, v. COLORADO DEPARTMENT OF CORRECTIONS; Dr. Nweke, C.C.C.F. Medical; Dr. Fallhouse, C.C.C.F. Medical; Joseph Wermer, Dr., A.V.C.F. Medical; Cindra Mar-tinez, MRT II, A.V.C.F. Medical; Anthony Decesaro, CDOC Grievance Officer; Dr. Raymond L. Lilly; Dr. Kenneth D. Danylchuck, Defendants-Appellees. No. 05-1121. Oct. 3, 2005. Background: Prisoner brought § 1983 action, alleging Colorado Department of Corrections and its various employees violated his Eighth Amendment right by their deliberate indifference to his medical needs. The United States District Court for the District of Colorado dismissed suit for failure to exhaust administrative remedies and denied prisoner's motion to reconsider. Prisoner appealed. Holdings: The Court of Appeals, Robert H. Henry, Circuit Judge, held that: 1(1) prisoner's failure to exhaust his administrative remedies with respect to one claim warranted dismissal of his entire complaint, and 2(2) prisoner was not entitled to reconsideration of dismissal order. Affirmed. West Headnotes

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78 Civil Rights 78III Federal Remedies in General 78k1314 Adequacy, Availability, and Exhaustion of State or Local Remedies 78k1319 k. Criminal Law Enforcement; Prisons. Most Cited Cases Prisoner's failure to exhaust his administrative remedies with respect to his claim that he was denied effective medication for severe back and leg pain for an extended period of time and his necessary back surgery was improperly delayed warranted dismissal of his entire § 1983 complaint, alleging Colorado Department of Corrections and its various employees violated his Eighth Amendment right by their deliberate indifference to his medical needs. U.S.C.A. Const.Amend. 8; 42 U.S.C.A. § 1983; Civil Rights of Institutionalized Persons Act, § 7(a), 42 U.S.C.A. § 1997e(a). [2] Federal Civil Procedure 170A 1840

170A Federal Civil Procedure 170AXI Dismissal 170AXI(B) Involuntary Dismissal 170AXI(B)5 Proceedings 170Ak1839 Vacation 170Ak1840 k. Grounds and Objections. Most Cited Cases Prisoner failed to allege the existence of new law or evidence or make any convincing arguments that clear error existed or manifest injustice had been done, as was required to be entitled to reconsideration of order dismissing § 1983 action alleging that Colorado Department of Corrections and its various employees violated his Eighth Amendment right by their deliberate indifference to his medical needs. U.S.C.A. Const.Amend. 8; 42 U.S.C.A. § 1983. *631 John W. Suthers, Attorney General, State of Colorado Department of Law, Denver, CO, for Defendant-Appellee.

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Case 1:03-cv-01959-MSK-PAC

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151 Fed.Appx. 630 151 Fed.Appx. 630, 2005 WL 2423724 (C.A.10 (Colo.)) (Cite as: 151 Fed.Appx. 630)

Before EBEL, McKAY, and HENRY, Circuit Judges. ORDER AND JUDGMENTFN* FN* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.ROBERT H. HENRY, Circuit Judge. **1 After examining appellant's brief and the 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); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Orlando Cortez Clark, a prisoner appearing pro se, brings suit pursuant to 42 U.S.C. § 1983. He argues that the Colorado Department of Corrections and its various employees violated his Eighth Amendment right to be free of cruel and unusual punishment. He contends that the defendants were deliberately indifferent to his medical needs. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM the judgments of the district court (1) dismissing Mr. Clark's suit for failure to exhaust his administrative remedies and (2) denying his motion to reconsider. I. BACKGROUND Mr. Clark is a prisoner in the custody of the Colorado Department of Corrections ("DOC") at the Arkansas Valley Correctional Facility in Crowley, Colorado. He initiated this action by filing a § 1983 claim in which he alleged that the defendants were deliberately indifferent to his medical needs because (1) he was denied effective medication for severe back and leg pain for an extended

period of time, and his necessary back surgery was improperly delayed; and (2) after his eventual surgery, he did not receive prescribed pain medication, orthopedic shoes, certain hose for his legs, a leg brace, or a medical pillow in a timely manner. The district court dismissed Mr. Clark's claims without prejudice because he failed to exhaust administrative remedies as to his first claim. II. DISCUSSION We review de novo a district court's dismissal of an inmate's suit for failure to *632 exhaust administrative remedies. Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.2002). The Prison Litigation Reform Act ("PLRA") states 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); see also Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). In addition, we have held that "the PLRA contains a total exhaustion requirement, and ... the presence of unexhausted claims in [a prisoner]'s complaint require[s][a] district court to dismiss his action in its entirety without prejudice." Ross v. County of Bernalillo, 365 F.3d 1181, 1189 (10th Cir.2004). [1] We agree with the district court that Mr. Clark appears to have exhausted administrative remedies as to his second claim of relief. Regarding his first claim, Mr. Clark asserted in the third stage of his formal grievance procedure that he was denied effective pain medication and that he needed surgery. However, he failed to make those allegations in the first two stages of the formal grievance procedure. The DOC Administrative Regulations do not allow an inmate to raise in a subsequent step an issue that was not raised in each prior step. See Colo. Dep't of Corr. Admin. Reg. 850-4(IV)(B)(3)(b) ("A substantive issue may not be added at a later step if it has not been contained

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Case 1:03-cv-01959-MSK-PAC

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Filed 07/17/2006

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151 Fed.Appx. 630 151 Fed.Appx. 630, 2005 WL 2423724 (C.A.10 (Colo.)) (Cite as: 151 Fed.Appx. 630)

in each previous step of that particular grievance."). Therefore, because Mr. Clark failed to exhaust his administrative remedies with respect to his first claim, the district court correctly dismissed his entire complaint without prejudice. See Ross, 365 F.3d at 1189. **2 [2] Furthermore, we conclude that the district court did not abuse its discretion in denying Mr. Clark's motion to reconsider. See Elsken v. Network Multi-Family Sec. Corp., 49 F.3d 1470, 1476 (10th Cir.1995) ("[W]e review a denial of a motion to reconsider only for an abuse of discretion."). Although we construe his pleadings liberally, see Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), Mr. Clark has neither alleged the existence of new law or evidence, nor made any convincing arguments that clear error exists or manifest injustice has been done. See Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.2000) ("Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice."). III. CONCLUSION For substantially the same reasons identified by the district court in its well-reasoned decision, we AFFIRM the dismissal of Mr. Clark's § 1983 claim, and we AFFIRM the district court's denial of his motion to reconsider. We GRANT Mr. Clark's renewed motion to proceed without prepayment of the appellate filing fee, and we remind him that he is obligated to continue making partial payments until the entire fee has been paid. C.A.10 (Colo.),2005. Clark v. Colorado Dept. of Corrections 151 Fed.Appx. 630, 2005 WL 2423724 (C.A.10 (Colo.)) Briefs and Other Related Documents (Back to

top) · 05-1121 (Docket) (Mar. 15, 2005) END OF DOCUMENT

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