185 F. App'x 741
10th Cir.
2006

Brian McGOLDRICK; Tod Pabst; Marcus Washington; Jeffrey J. Sperry, Plaintiffs-Appellants, v. Roger WERHOLTZ, Secretary, Kansas Department of Corrections, in his individual and official capacity, Defendant-Appellee.

No. 05-3438

United States Court of Appeals, Tenth Circuit

June 22, 2006

741

Before HENRY, BRISCOE, and MURPHY, Circuit Judges.

ORDER AND JUDGMENT

disregard an excessive risk to the inmate‘s health or safety. Id.

Holt‘s allegations fail to state an Eighth Amendment claim. According to his own allegations, Holt was prescribed medication for his shoulder pain. Therefore, prison officials did not disregard Holt‘s condition. His assertion that corrective surgery is required is conclusory. Without any medical opinion evidence, Holt‘s personal desire for surgery is insufficient. See Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir.1980) (“[A] mere difference of opinion between the prison‘s medical staff and the inmate as to the diagnosis or treatment which the inmate receives does not support a claim of cruel and unusual punishment.“).

C. Conclusion

We conclude Holt‘s appeal is frivolous and DISMISS it. Holt has accumulated two strikes in this matter, one due to the district court‘s dismissal for failure to state a claim and one due to our dismissal of the appeal as frivolous. See 28 U.S.C. § 1915(g).8 We DENY his “Motion Seeking Temporary Restraining Order” because it merely reiterates his denial of access to the court claim. We also DENY his “Renewed Motions for Temporary Restraining Order and Preliminary Injunction and Order Appointing Counsel and Additional Relief” because they seek the relief requested in his original motion for temporary restraining order and also improperly attempt to challenge the revocation of his parole, which occurred after the district court dismissed his complaint. Holt is reminded to continue making partial payments of his appellate filing fee until the entire balance is paid.

Brian McGoldrick, Lansing, KS, pro se.

Tod Pabst, Lansing, KS, pro se.

Marcus Washington, Lansing, KS, pro se.

Jeffrey J. Sperry, Lansing, KS, pro se.

Robert G. Allison-Gallimore, Ralph De Zago, Asst. Aty. Gen., Brian D. Sheern, Office of the Attorney General State of Kansas, Topeka, KS, for Defendant-Appellee.

Before HENRY, BRISCOE, and MURPHY, Circuit Judges.

ORDER AND JUDGMENT*

*

MARY BECK BRISCOE, Circuit Judge.

Plaintiffs Brian McGoldrick, Tod Pabst, Marcus Washington, and Jeffrey Sperry are state prisoners at the Lansing Correctional Facility in Lansing, Kansas. Defendant Roger Werholtz is the Secretary of Corrections for the Kansas Department of Corrections. Appearing pro se, plaintiffs appeal from the order and the related judgment entered by the district court dismissing without prejudice all of the claims asserted in their complaint under 42 U.S.C. § 1983. Plaintiffs also appeal from the district court‘s order denying their motion to alter or amend judgment under Fed.R.Civ.P. 59(e). We reverse in part and affirm in part.

In their § 1983 complaint, plaintiffs asserted two claims against defendant. First, plaintiffs alleged that defendant has violated their rights under the First and Fourteenth Amendments by enacting a regulation that prohibits them from possessing sexually explicit materials. Second, plaintiffs alleged that defendant has violated their Fourth and Fourteenth Amendment rights, and committed certain state-law torts, by requiring that ten percent of all monies they receive be placed in mandatory prison savings accounts. Plain-tiffs requested a declaratory judgment, injunctive relief, and compensatory and punitive damages. Plaintiffs also requested that the district court certify their case as a class action under Fed.R.Civ.P. 23. Although plaintiffs did not define the class in their complaint, they assert in their appellate brief that they sought to certify a class consisting of “all Kansas inmates.” Aplts. Br. at 3.

In this appeal, we are presented with issues concerning the requirement under 42 U.S.C. § 1997e(a) that a prisoner must exhaust his prison administrative remedies before seeking relief under § 1983. As set forth in plaintiffs’ brief, it is undisputed that plaintiff Sperry has exhausted his prison administrative remedies with regard to all of the claims asserted in plaintiffs’ complaint. Aplts. Br. at 2-3. It is also undisputed, however, that plaintiffs McGoldrick, Pabst, and Washington have exhausted their prison administrative remedies only with regard to the claim challenging the ban on sexually explicit materials. Id.

Applying 42 U.S.C. § 1997e(a) and this court‘s “total exhaustion rule,” the district court granted defendant‘s motion for summary judgment and dismissed all of the claims asserted in plaintiffs’ complaint without prejudice. The court‘s dismissal was based on the fact that plaintiffs’ complaint contained both exhausted and unexhausted claims, R., Doc. 37 at 5 (stating that “plaintiffs have failed to exhaust all available administrative remedies with respect to some of the claims in their complaint“), and the court‘s reasoning was based on this court‘s decision in Ross v. County of Bernalillo, 365 F.3d 1181, 1190 (10th Cir.2004) (holding that § 1997e(a) “requires inmates to exhaust fully all of their claims before filing in federal court. If a prisoner does submit a complaint containing one or more unexhausted claims, the district court ordinarily must dismiss the entire action without prejudice.“). The court also relied on this same reasoning to deny plaintiffs’ Rule 59(e) motion. R., Doc. 43 at 3-4.

We are governed by a mixed standard of review in this appeal. On the one hand, “[o]ur review of a dismissal under [§ 1997e(a)] for failure to exhaust administrative remedies is de novo.” Ross, 365 F.3d at 1185. By contrast, “[t]his court reviews the district court‘s ruling on [plaintiffs‘] Rule 59(e) motion for abuse of discretion.” Loughridge v. Chiles Power Supply Co., 431 F.3d 1268, 1275 (10th Cir. 2005).

The district court‘s summary judgment order raises two issues. To begin with, the court did not address plaintiffs’ request that a class of prisoners be certified under Fed.R.Civ.P. 23, and the court thus did not consider whether the request for certification of a class action had any effect on the exhaustion issues. In addition, the court did not acknowledge or address the fact that Ross involved a single prisoner-plaintiff who had pled both exhausted and unexhausted claims, as opposed to the situation here where there are multiple plaintiffs. Ross, 365 F.3d at 1182.

In their brief, plaintiffs cite cases standing for the proposition that the prisoner exhaustion requirement is satisfied in a class action where a single member of the class has exhausted his or her administrative remedies with respect to each claim raised by the class, and this is known as “vicarious exhaustion.” Aplts. Br. at 3 (citing Chandler v. Crosby, 379 F.3d 1278 (11th Cir.2004); Lewis v. Washington, 265 F.Supp.2d 939 (N.D.Ill.2003); Jones v. Berge, 172 F.Supp.2d 1128 (WD.Wis. 2001)). Although we agree with plaintiffs that the vicarious exhaustion rule might save their claims if the district court had certified a class of prisoners (assuming, without deciding, that this circuit would follow the vicarious exhaustion rule), the district court did not certify a class here. Moreover, because plaintiffs are pro se, the district court would have abused its discretion if it had certified a class action. See Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir.2000) (holding that this court reviews the issue of whether representative parties are adequate class representatives under Fed. R.Civ.P. 23(a)(4) for abuse of discretion, and that class representatives cannot appear pro se); see also Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (holding that pro se prisoners are not adequate representatives for a class); 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1769.1 at 450 & n. 13 (3d ed.2005) (stating rule that “class representatives cannot appear pro se,” and citing supporting case law).

That said, we nonetheless conclude that the district court erred in dismissing plaintiff Sperry‘s claims. As noted above, it is undisputed that plaintiff Sperry exhausted all of the claims asserted in plaintiffs’ complaint, and we see no reason to penalize him for the failure of his co-plaintiffs to exhaust all of their claims. As a result, we hold that the district court should have applied the total exhaustion rule to each plaintiff separately, and that the rule therefore does not bar plaintiff Sperry‘s claims.

Accordingly, we AFFIRM the order and the related judgment entered by the district court dismissing all of the claims of plaintiffs McGoldrick, Pabst, and Washington without prejudice. Because the district court did not abuse its discretion, we also AFFIRM the denial of relief under Fed.R.Civ.P. 59(e) with regard to plaintiffs McGoldrick, Pabst, and Washington. We REVERSE and VACATE the portions of the order and the related judgment entered by the district court dismissing the claims of plaintiff Sperry, and the latter claims are REMANDED to the district court for further proceedings.

MARY BECK BRISCOE

Circuit Judge

Notes

8
While the district court dismissed the case pursuant to 42 U.S.C. § 1997e(c) for failure to state a claim, nothing in § 1915(g) limits the imposition of strikes to dismissals under 28 U.S.C. § 1915(e)(2). Moreover, because Holt proceeded in forma pauperis in the district court, the district court could have dismissed the case pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
*
After examining the briefs and 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)(2); 10TH CIR. R. 34.1(G). The case is therefore ordered submitted without oral argument. 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.