CANNON v. MASON, 284 Fed.Appx. 588 (10th Cir. 2008)

Jemaine Monteil CANNON, Plaintiff-Appellant, v. Chester MASON, Correctional Health Services Administrator; Doctor Stewart, D.O.; Doctor Miller, Eye Physician, Defendants-Appellees.

No. 08-7005.United States Court of Appeals, Tenth Circuit.
July 17, 2008.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Jemaine Monteil Cannon, McAlester, OK, pro se.

Linda K. Soper, Assistant Attorney General, Office of the Attorney General OKC

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Litigation, Oklahoma City, OK, for Defendants-Appellees.

Before TACHA, KELLY, and McCONNELL, Circuit Judges.[*]

[*] After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See
Fed.R.App.P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

ORDER AND JUDGMENT[**]

[**] This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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.

PAUL J. KELLY, JR., Circuit Judge.

Plaintiff-Appellant Jemaine Monteil Cannon, a prisoner appearing pro se, appeals the district court’s dismissal of his 42 U.S.C. § 1983 civil-rights claim for failure to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a), and its implicit denial of his applications for injunctive relief. Mr. Cannon’s complaint and request for injunctive relief pertain to his medical treatment as an inmate at the Oklahoma State Penitentiary. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

“We review de novo the district court’s finding of failure to exhaust administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). Under 42 U.S.C. § 1997e(a), a prisoner who brings an action pertaining to prison conditions must exhaust all administrative remedies available to him prior to filing the action. The Oklahoma Department of Corrections (“ODOC”) has a grievance procedure in place for all claims not involving misconducts requiring prisoners to properly and timely file for each claim: (1) a request to staff; (2) a grievance to the facility head; and (3) an appeal of the facility head’s response to the administrative-review authority. R. Doc. 31 at 2. Only after a final ruling by the administrative-review authority or chief medical officer have all administrative remedies for a claim been exhausted. Id. The grievance logs for the relevant time period and sworn affidavits from ODOC employees indicate that Mr. Cannon did not file any grievance. R. Doc. 31, 32 Ex. 2, 3, 9. As Mr. Cannon does not contest these facts, his complaint was properly dismissed unless an exception to exhaustion applies. See Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007).

On appeal, Mr. Cannon essentially argues that the district court erred in (1) denying his motion for injunctive relief, and (2) dismissing his claim because of the inadequacy or unavailability of administrative remedies. We have reviewed his claims and conclude that the district court did not err. A grievance procedure was available, Mr. Cannon did not avail himself of it, and the fault does not lie with the Defendants See Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007).

AFFIRMED.

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