BILLY F. MAY, Plaintiff - Appellant,
JUAN SEGOVIA, Defendant-Appellee.
from the United States District Court for the District of
Colorado (D.C. No. 1:15-CV-00405-NYW)
Anthony Balkissoon (Amir H. Ali and Joshua Freiman on the
briefs), Roderick & Solange MacArthur Justice Center,
Washington, D.C., for Appellant.
L. Schock, Assistant United States Attorney (Robert C.
Troyer, United States Attorney, with him on the brief),
Denver, Colorado, for Appellee.
BRISCOE, HOLMES, and McHUGH, Circuit Judges.
MCHUGH, CIRCUIT JUDGE
F. May, a former federal prisoner, brought this action in
federal district court under Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971). Mr. May claims he was
denied his due process rights as a prisoner when he was
quarantined without a hearing during a scabies infestation at
the prison. The magistrate judge granted Mr. Segovia summary
judgment on two issues: first, that the exhaustion
requirement of the Prison Litigation Reform Act
("PLRA") applies to Mr. May, and second, that there
is no genuine issue of material fact as to the availability
of administrative remedies. Mr. May appealed to contest both
conclusions. Mr. Segovia opposes Mr. May's appeal and
raises two alternative grounds for affirmance that Mr.
Segovia raised below but the magistrate judge did not reach.
reasons stated, we affirm the magistrate judge's
conclusions that the PLRA exhaustion requirement applies to
Mr. May and that there is no genuine issue of material fact
as to whether administrative remedies were available to him.
Because we affirm the judgment below, we need not and do not
reach Mr. Segovia's alternative arguments.
time this action began, Mr. May was a prisoner in the Federal
Prison Camp in Florence, Colorado. The Federal Prison Camp
periodically "experienced chronic outbreaks of scabies,
a parasitic infection of the skin caused by scabies
mite[s]," and one such outbreak occurred while Mr. May
was imprisoned there. Appellant's App. at 16-17 (internal
citation omitted). Scabies is a "highly contagious and
communicable disease" that is transmitted by sharing
"clothing, bedding, or towels," and "through
skin-to skin contact." Id. at 16. Individuals
infected with scabies develop itchy skin as a symptom, but
that symptom may not present for as many as six weeks after
the disease is contracted. Due to that delay, it was the
prison's policy to treat both "symptomatic inmates
and asymptomatic 'close contacts,' namely
cellmates." See id. Scabies can be treated
either orally (with Ivermectin) or with a skin cream
scabies broke out at the prison in January 2015, the prison
required every inmate to take Ivermectin or, if they refused
for any reason, to be quarantined in the Special Housing Unit
(the "SHU"). Mr. May refused to take the Ivermectin
because "he previously suffered an allergic
reaction" to the drug. Appellant's App. at 17. Due
to that refusal, on January 8, 2015, then camp administrator
Juan Segovia ordered Mr. May quarantined in the SHU and
treated with permethrin cream "until medically cleared
by FPC medical staff." Id.
unspecified reason, Mr. May was initially unable to obtain
"the appropriate forms" to file an administrative
grievance while confined in the SHU. See id. at 18,
25. Although it is unclear from the record how long he lacked
access to those forms, the record reflects that Mr. May
ultimately filed five grievances before he was medically
cleared to leave the SHU on February 4, 2015. Mr. May filed
an additional twenty-four grievances between the day he left
the SHU and his ultimate release from prison in November
2015. None of the twenty-nine grievances "dealt with
[Mr. May's] placement in the SHU, conditions in the SHU,
or the denial of a hearing upon his placement in the
SHU." Id. at 18.
February 27, 2015, and while still incarcerated, Mr. May
filed a pro se prisoner complaint in federal district court.
Among other things, Mr. May alleged that the prison had not
"follow[ed] the due process procedures outlined by the
Supreme Court" when, "for disciplinary
purposes," it placed him in the SHU for refusing to take
Ivermectin. See Appellee's Suppl. App. at 4. On
March 16, "[a]t the [district] court's direction to
refile using the appropriate form," Mr. May filed his
First Amended Complaint ("FAC"). Appellant's
App. at 14. He made essentially the same allegations-again
asserting that the prison had not provided him with a hearing
and had not followed the "due process procedures
outlined by the Supreme Court," see
Appellee's Suppl. App. at 16-but now framed them as
Bivens claims. The district court dismissed some of
Mr. May's claims not relevant here and referred the
remainder to a magistrate judge.
April 2015, Mr. May moved for summary judgment. The
government filed its response in opposition to Mr. May's
summary judgment motion in June. Attached to that response as
Exhibit C was a declaration from Mr. Segovia-who was not yet
a named defendant-that stated Mr. Segovia had "made the
decision to place" Mr. May in the SHU. Id. at
37-38. In July, Mr. May moved to file a second amended
complaint (the "SAC") to add Mr. Segovia as a
defendant. Although Mr. May filed that motion in July, the
court did not grant it until January 19, 2016, two months
after Mr. May had been released from custody.
magistrate judge construed the SAC as raising three
constitutional claims and dismissed two of those claims. Mr.
May has not appealed those rulings. The magistrate judge
denied the government's motion to dismiss the
Bivens claim based on procedural due process against
Mr. Segovia; Mr. Segovia then moved for summary judgment. The
magistrate judge ultimately granted that motion, concluding
that Mr. May was subject to the PLRA and had not exhausted
his administrative remedies. In doing so, the magistrate
judge also determined there was no genuine issue of material
fact that administrative remedies were not
"available" to Mr. May.
now appeals both of those rulings, arguing the PLRA does not
apply to him because he was not a prisoner at the time he
filed his operative complaint-the SAC-and even if the PLRA
does apply, there is a genuine issue of material fact as to
whether administrative remedies were available to him,
rendering summary judgment improper. Mr. May does not dispute
the magistrate judge's determination that he did not
exhaust available administrative remedies.
opposition to Mr. May's appeal, Mr. Segovia raises two
additional issues he argued below but that the magistrate
judge did not reach: first, whether this court recognizes a
Bivens claim based on procedural due process, and
second, if it does, whether Mr. Segovia is entitled to
qualified immunity. Because we affirm the magistrate
judge's decision on the same grounds relied upon by the
magistrate judge, we do not reach Mr. Segovia's
PLRA states: "No action shall be brought with respect to
prison conditions . . . 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). Any prisoner who seeks to bring a
claim involving "general circumstances or particular
episodes" of prison life, see Porter v. Nussle,
534 U.S. 516, 532 (2002), must first exhaust the
administrative remedies available to him in prison, Jones
v. Bock, 549 U.S. 199, 211 (2007) ("There is no
question that exhaustion is mandatory under the PLRA . . .
."). Mr. May argues the PLRA exhaustion requirement does
not apply to him because his Second Amended Complaint was
deemed filed in January 2016, two months after he had been
released from prison. Alternatively, he argues that even if
the PLRA does apply, there is a genuine dispute of material
fact whether any administrative remedies were available to
him, which renders the grant of summary judgment improper.
first address the applicability of the PLRA and conclude it
does apply to Mr. May. We next review the magistrate
judge's determination that there is no genuine issue of
material fact concerning the availability of administrative
remedies and affirm its decision.
The Applicability of the PLRA
of statutory interpretation, like the proper interpretation
of the PLRA, are pure questions of law that we review de
novo. See In re Taylor, 899 F.3d 1126, 1129 (10th
Cir. 2018). The text of the PLRA establishes a temporal
relationship between the exhaustion requirement and any
prisoner's suit. "No action shall be brought,"
it says, "until such administrative remedies as
are available shall be exhausted." 42 U.S.C. §
1997e(a) (emphasis added). Because an action is brought or
"commenced by filing a complaint with the court,"
see Fed. R. Civ. P. 3, a plain reading of the PLRA
could require exhaustion so long as the plaintiff was a
prisoner when the initial complaint was filed. But the
Supreme Court's decision in Jones v. Bock offers
a more nuanced interpretation of the "no action shall be
Jones v. Bock
Jones, the Court considered consolidated PLRA cases.
See 549 U.S. at 204-11. The Sixth Circuit had
interpreted the PLRA to create three somewhat novel
procedural rules: first, that exhaustion was a pleading
requirement rather than an affirmative defense; second, that
PLRA exhaustion required full exhaustion of administrative
remedies for "each individual later named in the
lawsuit"; and third, that when unexhausted and exhausted
claims are both included in the same suit, a "total
exhaustion" rule applies, requiring the dismissal of the
whole action, not just the unexhausted claims. Id.
at 204-06. The Court rejected each of these rules because
"courts should generally not depart from the usual
practice under the Federal Rules" unless the PLRA
expressly indicates otherwise. See id. at 212
(explaining that the PLRA's "silence" on a
procedural issue "is strong evidence that the usual
practice" under the Federal Rules "should be
discussion of the third issue-the total exhaustion rule-the
Court noted that the "no action shall be brought"
language is common in statutes of limitation and is not used
in that context to dismiss whole actions because of the
inclusion of an untimely claim. Id. at 220-21.
"As a general matter, if a complaint contains both good
and bad claims, the court proceeds with the good and leaves
the bad." Id. at 221. The Supreme Court
explained that a total exhaustion rule departs from the usual
practice under the Federal Rules by reading
"action" literally, rather than understanding it in
context of normal practice under the Federal Rules. Thus,
with the Supreme Court's clarifying interpretation, the
PLRA's imperative is properly understood to apply to
claims and not entire actions.
question under Jones, then, is when Mr. May's
due-process claim-the only claim before us-first entered the
litigation. If Mr. May brought this claim prior to his