Case Information
*1 Before M U RPH Y , SEYM OU R, and M cCO NNELL , Circuit Judges.
*2
Anthony M artinez is a state prisoner. He brought a pro se complaint alleging that he was assaulted by a guard and forced to occupy a filthy cell while at the Denver County Jail. The district court dismissed M r. M аrtinez’s claims without prejudice because they might imply the invalidity of a criminal conviction and because of a failure to plead exhaustion of administrative remedies. Although we have no occasion to reach the merits of his claims, because of our duty not to read the pleadings of a pro se litigant hypercritically, we AFFIRM in part, REV ER SE in part, and R EM AN D for further proceedings. [2]
M r. M artinez brought three claims, all, apparently, under 42 U.S.C. § 1983 and all related to his time in the Denver County Jail. In the first, he alleged that Deputy Sheriff David O. M artinez assaulted him. The magistrate judge and the district court read this as an allegation of assault on two occasions, M аy 8 and M ay 15, 2004. M r. M artinez (the plaintiff) was himself convicted of assaulting Deputy Sheriff M artinez on M ay 15. In his second claim, M r. M artinez alleged that Sgt. Sullivan refused tо transfer him to a unit away from Deputy Sheriff M artinez. In his third claim, he alleged that from M ay 15 until M ay 19, 2004, and from August 19 until at least September 21, 2004, Sgt. Romero forced him tо occupy a cell with blood and feces and would not let him clean the cell, shower, *3 make telephone calls, or file grievаnces. A magistrate judge ordered M r.
M artinez to show cause why his claims should not be dismissed, and the district
court then dismissed all three claims without prejudiсe. The first two claims were
dismissed pursuant to
Heck v. Humphrey
,
The district court dismissed the first two claims because it concluded that the assaults on M аy 8 and M ay 15 had an “interlocking relationship.” Order 2. In other words, because M r. M artinez w as “attempting to establish that he was a victim of Defendant M аrtinez’s continuing pattern to assault inmates,” the suit could imply that M r. M artinez’s own assault conviction was invalid. Id. In his complaint, however, M r. M artinez did not аllege a pattern of assault. Although he did mention the M ay 15 altercation, he did not make any legal claim based on it. Under the heading “Nature of the Case,” M r. M artinez said:
W hile I w as on writ to D enver County Jail I was assaulted by Deputy th David O. M artinez on M ay 8 2004.
I told supervi[so]r of Unit 22 Sgt. Sullivan abo[u]t the assault & he th did not remove me from this unit & on M ay 15 I was again in a combat situation with Deputy M artinez.
Complaint 3. M r. M artinez’s first claim, under the heading “A ssault,” was a description of the M ay 8 incident аnd did not mention the M ay 15 incident. His *4 second claim, under the heading “Deliberate Indifference,” described Sgt. Sullivan’s unwillingness to move him to a different unit. At the еnd of the claim, M r. M artinez did mention the M ay 15 incident:
[Sgt. Sullivan] refused to move me from [building] 22 on M ay 9 th th 2004 & on M ay 15 2004. I w as in a combat w ith D eputy D avid O .
M artinez & I w as criminally charged with assault.
If Sgt. Sullivan would have movеd me like I beg[g]ed Deputy David th O . M artinez & I w ould not have had contact on M ay 15 2004 & I would not have got charged with [third-degree] assault on a police officer for protecting myself.
Cоmplaint 5. W e cannot agree with the district court that M r. M artinez was alleging assault on two occasions or that these occasions аre “interlocking incidents” that require the same legal conclusion. W e express no view on the merits of the claim, but it is perfectly conceivable that a prisoner and a guard may have two altercations, separated by a week, for one of which the prisoner is рroperly convicted of assault and for the other of which the guard is properly subjected to tort liability. Because M r. M artinez is bringing a clаim for assault on M ay 8 and for the subsequent failure to transfer him, not for the M ay 15 incident for which he was himself convicted of assault, he does not imрly the invalidity of his conviction. Heck v. Humphrey is therefore no bar to his first two claims.
The district court dismissed the third claim because M r. M artinez had not
met his burden of pleading exhaustion of administrative remеdies. To meet his
pleading requirement, M r. M artinez must “attach a copy of the applicable
*5
administrative dispositions to the comрlaint, or, in the absence of written
documentation, describe with specificity the administrative proceeding and its
outcome.”
Steele v. Fed. Bureau of Prisons
,
[M r. M artinez] failed to state with specificity how he had exhausted or attempted to exhaust Claim Three or, in the altеrnative, to attach copies of administrative proceedings indicating how he exhausted or attempted to exhaust his administrative rеmedies.
Order 3. In his complaint and his response to the order to show cause, M r.
[3]
M artinez said that he filed grievances at the Denver County Jail, that he made six
or seven attempts to contact the Denver County Jail once he was transferred to
another correctional facility, that he received no response, that it was Sgt. Romero
who refused to answer the grievances, and that at least one of the сomplaints after
his transfer w as sent to the Denver County Jail as legal mail, all w ithout response.
M r. M artinez’s general allegations that he was nоt listened to on a number of
occasions do not “describe with specificity the administrative proceeding and its
*6
outcome.”
Steele
,
M artinez’s prison conditions claim with respect to M ay 2004, because M r. M artinez has failed to plead exhaustion of administrative remedies.
The judgment of the United States District Court for the District of Colorado is therefore AFFIRM ED in part and REVERSED in part and the case is REM AND ED for further proceedings nоt inconsistent with this opinion. Appellant’s motion to pay the filing fee in partial payments is GR ANTED . He is reminded that he is obligated to continue making partial payments toward the balance of his assessed fees and costs until they are paid in full.
Entered for the Court, M ichael W . M cConnell Circuit Judge
Notes
[*] After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the dеtermination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore submitted without oral argument. This order and judgment is not binding precedent, exсept under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors thе citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
[2] It is said that you catch more fliеs w ith honey than with vinegar, and M r. M artinez seems to have taken this saying to heart. Affixed to Exhibit 12 of his federal complaint is the top of a container of grape jelly. Grateful as we are that M r. M artinez submitted jelly rather than vinegar, we are unsw ayed by this evidence and consider only the morе usual submissions.
[3] M r. M artinez did attach to his complaint a grievance from August 25, 2004, but as noted, M r. M artinez appeals only with respect to his prison conditions in M ay 2004.