Eric WATKINS, Plaintiff-Appellant, v. Correctional Officer DONNELLY; Mrs. Ingram, Lieutenant, FTC; Mr. Monroe, Food Service Supervisor; Mark J. Manteufell; Paul A. Kastner, Defendants-Appellees.
No. 12-6062.
United States Court of Appeals, Tenth Circuit.
Jan. 6, 2014.
Michael Avery, McAfee & Taft, H. Lee Schmidt, Office of the United States Attorney, Oklahoma City, OK, for Defendants-Appellees.
Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.
JEROME A. HOLMES, Circuit Judge.
Plaintiff-Appellant Eric Watkins has filed a pro se1 appeal from the district court‘s decision to deny him a default judgment and dismiss his Bivens2 claims as unexhausted and barred by qualified immunity. Our jurisdiction arises under
* 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
This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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
I
The case at bar comes to us from the district court‘s granting of a motion to dismiss pursuant to
While incarcerated by the Federal Bureau of Prisons (“BOP“), Mr. Watkins filed an administrative grievance, alleging that a prison official whom he later identified as Officer Donnelly had “kicked the trap door” in his cell shut, thereby injuring him. R. at 81 (Request for Admin. Remedy, dated Jan. 19, 2008). His claim was denied and he appealed to the local BOP Regional Director, who responded on a form dated April 4, 2008. In that response, the Regional Director notified Mr. Watkins that he had referred the complaint “to the appropriate Bureau component for investigation.” Id. at 88 (Reg‘l Admin. Remedy Appeal Resp., dated Apr. 4, 2008). The response was delivered to Mr. Watkins on April 30, 2008 and it informed him that any further “appeal must be received in the Office of General Counsel within 30 days from the date of this response.” Id.
Mr. Watkins, however, submitted a document to the Office of the General Counsel (i.e., the BOP Central Office) on a form dated June 22, 2008, wherein he requested an extension of time to file his appeal on the grounds that the earlier response had been given to him so late and that prison staff had been noncompliant with his requests for the documents he needed to pursue his appeal. The BOP Central Office rejected the document as untimely. In so doing, it informed Mr. Watkins that he was entitled to re-submit his appeal within fifteen days, but that if he did so he
Instead, Mr. Watkins sued various correctional employees under Bivens in federal court, making out claims based on the kicking of the trap door and on the new allegation that, on the same day as that incident, he had been denied religious meals. Explaining the events that occurred on the day in question in greater detail, he asserted that he had been holding open his trap door for an extended period of time to protest the withheld religious meals. When the issue was not resolved, Mr. Watkins began repeatedly slamming the door against his cell, creating a loud, “annoying” noise. Id. at 74 (Am. Compl., filed Feb. 1, 2010). Eventually, Officer Donnelly approached the cell and kicked the door against Mr. Watkins‘s hand, causing bleeding, swelling, and pain. Over the course of the day, Mr. Watkins was denied three religious meals.
In his amended complaint, Mr. Watkins asserted that various officers involved in the incident violated his First, Fifth, and Eighth Amendment rights and committed assault and battery against him. Specifically, he averred (1) that Officer Donnelly used excessive force against him in violation of his Eighth Amendment rights by kicking the door;4 (2) that a group of other correctional staff members—Defendants Ingram, Monroe, Manteufell, and Kastner (“the Ingram Defendants“)—violated his Eighth Amendment rights by allowing the assault to occur; and (3) that the Ingram Defendants5 violated his First Amendment Free Exercise Clause rights by denying him three religious meals in one day.
The Ingram Defendants and Officer Donnelly both failed to submit timely answers to the complaint. When Mr. Watkins called attention to their lateness, the district court clerk entered default against both the Ingram Defendants and Officer Donnelly. To justify their tardy filings, the Ingram Defendants told the court that they had been under the impression that a pending recommendation by a magistrate judge to dismiss the action for Mr. Watkins‘s failure to effectuate timely service nullified their answer deadline. Officer Donnelly, for his part, sought to excuse his untimely answer by pointing to computer problems in his attorney‘s office. Unimpressed, Mr. Watkins moved the district court to enter default judgment against all the defendants. The district court did not do so. Instead, the court elected to vacate
The default judgment issues having been resolved, the magistrate judge subsequently issued a report and recommendation on the defendants’ motions to dismiss pursuant to
II
Mr. Watkins appeals on three principal grounds. First, he argues that the district court erred in setting aside the default entries and then denying his motions for default judgment. Second, he submits that his free-exercise and excessive-force claims should not have been dismissed for failure to exhaust. Third, he asserts that the Ingram Defendants were not entitled to qualified immunity. We are unpersuaded by Mr. Watkins‘s contentions on all three grounds; accordingly, we affirm the district court‘s judgment.
A
Mr. Watkins finds fault with the district court‘s decision to set aside the clerk‘s entry of default and finds fault with its attendant denial of his motions for default judgment. We review such decisions for abuse of discretion. See Harvey v. United States, 685 F.3d 939, 945 (10th Cir.2012) (“We review a district court‘s denial of a motion for default judgment for abuse of discretion.“); Nikwei v. Ross Sch. of Aviation, 822 F.2d 939, 941 (10th Cir.1987) (noting that the setting aside of default entries “is addressed to the sound discretion of the trial court“). For the reasons that follow, we conclude that the district court did not abuse its discretion.
1
Much of Mr. Watkins‘s briefing on the default issue concerning the Ingram Defendants is devoted to reiterating his view that the magistrate judge‘s recommendation to dismiss for failure to serve did not nullify the defendants’ deadline to answer. The district court actually agreed with Mr. Watkins on this legal proposition but, from its perspective, that did not control the outcome. Specifically, the court did not deny default judgment because the Ingram Defendants had a legally correct theory concerning the time for filing their answer; rather, the court did so because it thought their legally incorrect theory nevertheless supplied good cause.
As the district court found, the Ingram Defendants’ reliance upon the magistrate judge‘s recommendation to dismiss was negligent at most, not willful. Moreover, there is no indication that Mr. Watkins was prejudiced by the delay. Lastly, as demonstrated infra, the Ingram Defendants did have a meritorious defense, namely, qualified immunity. Thus, the district court did not abuse its discretion in setting aside the entry of default.
Entry of default by the clerk is a necessary prerequisite that must be performed before a district court is permitted to issue a default judgment. See Garrett v. Seymour, 217 Fed.Appx. 835, 838 (10th Cir. 2007) (describing the entry of default as “a prerequisite for the entry of a default judgment“); 10A Charles Alan Wright et al., Federal Practice & Procedure § 2682, at 13 (3d ed. 1998) (“Prior to obtaining a default judgment..., there must be an entry of default....“). Because the district court properly set aside the entry of default, and because a default judgment cannot have been entered in the absence of such entry, it ineluctably follows that the district court did not abuse its discretion in denying Mr. Watkins‘s motion for default judgment against the Ingram Defendants.
2
Mr. Watkins‘s only discernible argument against the default judgment rulings regarding Officer Donnelly is a regurgitation of his argument to the district court that defense counsel‘s computer problems were irrelevant because they began while the answer was already late. As before, though, the district court accepted this contention and nevertheless set aside the entry of default. Its decision to do so was not an abuse of discretion. We have nothing before us on which to base a conclusion that the conduct resulting in the initial lateness—before the computer problems—was willful, the district court correctly found that Officer Donnelly had colorable defenses, and no prejudice was apparent. The district court acted within the proper range of its discretion in vacating the entry of default, and accordingly (for the reasons noted regarding the Ingram Defendants) also properly exercised its discretion in denying Mr. Watkins‘s motion for default judgment against Officer Donnelly.
B
Relying on
By law, a federal inmate with a Bivens claim must exhaust all available administrative remedies before bringing his complaint to court. See Yousef v. Reno, 254 F.3d 1214, 1221 (10th Cir.2001). The issue of whether Mr. Watkins failed to exhaust his excessive-force claim against Officer Donnelly hinges on what Mr. Watkins did and did not do after April 30, 2008, when he was notified of the initial appeal‘s disposition. What Mr. Watkins did do was submit a form on June 22, 2008, requesting an extension of time on the ground that the earlier response had been given to him late, and explaining that he had been unable to obtain various documents he needed in order to pursue his appeal. What Mr. Watkins did not do was (1) request an extension within the four-day window to appeal; (2) re-submit his appeal after the lapsing of the appeal deadline, as the BOP permitted him to do; or (3) attempt to timely appeal within the four days he still had left to do so. The district court held that Mr. Watkins‘s inaction in this regard precluded him from taking his claim to federal court. We agree.
Under the BOP‘s regulations, an appeal from the Regional Director to the General Counsel—the appeal Mr. Watkins never made—must be submitted “within 30 calendar days of the date the Regional Director signed the response.”
Ostensibly, Mr. Watkins assumed that any effort to comply with the deadlines and the administrative processes available to him would have been futile. However, Mr. Watkins could not rely on such an assumption, fail to do all that he reasonably could do, and then reasonably expect to be heard in federal court on his claim. See Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.2002) (“Even where the ‘available’ remedies would appear to be futile at providing the kind of remedy sought, the prisoner must exhaust the administrative remedies available.“). Rather, Mr. Watkins was required to take every possible step within his power to complete the administrative appeals process. See id. at 1033 (“Mr. Jernigan may not successfully argue that he had exhausted his administrative remedies by, in essence, failing to employ them....“).
Mr. Watkins asks us to consider the limited amount of time he had to file a timely appeal and to consider the apparent difficulty he was having in obtaining the documents he needed to either appeal or re-submit his appeal. At bottom, he wants us to conjecture as to what might have occurred if he had endeavored to pursue his administrative appeal in a timely fashion or if he had re-submitted his appeal, in whatever form he was able to submit it. We decline to excuse Mr. Watkins‘s failure to exhaust by speculating as to what might have happened had he sought to vindicate his rights through the administrative process afforded to him; it was his obligation to spare us from engaging in such specula
C
On qualified immunity grounds, the district court dismissed Mr. Watkins‘s claims against the Ingram Defendants with prejudice. Mr. Watkins now challenges that ruling. Our review of the district court‘s dismissal is de novo. See Weise v. Casper, 593 F.3d 1163, 1166 (10th Cir.2010). A government official is entitled to qualified immunity where his actions did “not violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.‘” Id. (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). Qualified immunity is overcome where two requirements are met: (1) a constitutional violation took place that (2) violated a clearly established right. See Clark v. Wilson, 625 F.3d 686, 690 (10th Cir.2010). A court may dismiss a claim on either prong without addressing the other. See id. The district court dismissed Mr. Watkins‘s free-exercise claim because it alleged no constitutional violation. It dismissed his excessive-force claim against the Ingram Defendants on qualified-immunity grounds because the claim implicated no clearly established right. Finding no error in the district court‘s disposition in either respect, we affirm.
1
The district court viewed Mr. Watkins‘s free-exercise claims as barred by qualified immunity because the purported violation—the denial of three religious meals in one day—was de minimis.8 We think the same.
In a recent decision, we cited approvingly to the Seventh Circuit‘s conclusion that a prisoner‘s lack of access to a religious meal on three occasions qualified as a de minimis burden on religious exercise, and thus could not support a constitutional claim. See Abdulhaseeb v. Calbone, 600 F.3d 1301, 1321 (10th Cir.2010) (citing Rapier v. Harris, 172 F.3d 999, 1006 n. 4 (7th Cir.1999)). Mr. Watkins seeks to distinguish these cases on the ground that he was suing in part because the denial of the meals was to punish him for his obstreperous behavior, and was not the result of shortages or limited resources. Be that as it may, the de minimis inquiry goes to the burden on the religious exercise, see id. at 1321 (discussing the unavailability of religious food to an inmate “as a ‘de minimis burden‘” (emphasis added) (quoting Rapier, 172 F.3d at 1006 n. 4)), not to the officers’ motivation, cf. Irving v. Dormire, 519 F.3d 441, 446 (8th Cir.2008) (“Even with [malicious and sadistic] motivation, not every push or shove violates the Constitution, but any use of force greater than de minimis, or any use of force that is ‘repugnant to the conscience of mankind,’ does.” (emphases added) (quoting Hudson v. McMillian, 503 U.S. 1, 9-10, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992))); Morris v. Powell, 449 F.3d 682, 686 (5th Cir.2006) (“Some acts, though maybe motivated by retaliatory intent, are
2
The district court determined that the Ingram Defendants were entitled to qualified immunity on Mr. Watkins‘s Eighth Amendment claim because there was no clearly established “constitutional or statutory duty to prevent an inmate from holding open his food tray door.” R. at 245 (Report & Recommendation, filed Dec. 19, 2011). On appeal, Mr. Watkins frames his challenge to the ruling as based not on a duty to keep him from holding his door open, but on a duty to “keep [him] in a safe condition of confinement when [the Ingram Defendants] were made aware that [he] was not in a safe condition of confinement due to his holding ... the food tray trap door” open. Aplt. Opening Br. at 59. They should have made sure of his safety, Mr. Watkins says, by running through various security protocols. No matter how Mr. Watkins chooses to package his argument, it remains in substance the same: that the Ingram Defendants are liable for Officer Donnelly‘s kicking of the door.
Under certain circumstances, prison officials have a duty pursuant to the Eighth Amendment to protect inmates from violence inflicted by fellow officials. See United States v. Serrata, 425 F.3d 886, 896 (10th Cir.2005). A failure-to-protect claim must allege facts suggesting that a prisoner faced a substantial risk of harm of which the officials had subjective knowledge. See Farmer v. Brennan, 511 U.S. 825, 834, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). In order to accept Mr. Watkins‘s argument, then, we would have to hold that Mr. Watkins‘s decision to hold his trap door open and to bang it loudly against his cell exposed him to a substantial risk of harm. We would have to further hold that the Ingram Defendants, purely by virtue of observing his unruly behavior, were aware that his safety was in jeopardy and had a duty to intervene to protect him. Like the district court, we are unaware of any precedent imposing such an onerous and amorphous duty. The Eighth Amendment does not oblige prison officials to prophesy the injuries that might befall inmates while they engage in deliberately disruptive conduct.
D
Mr. Watkins filed a motion with the district court for leave to appeal IFP. Finding that the appeal was not taken in good faith, the district court denied the motion. Mr. Watkins renews his request for IFP status here. Although Mr. Watkins‘s arguments are ultimately unsuccessful, we nevertheless consider them to be, in part, “reasoned” and “nonfrivolous,” and regard the appeal as taken in good faith. Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077, 1079 (10th Cir.2007). We therefore accommodate Mr. Watkins‘s request to proceed IFP.
III
For the reasons detailed above, we affirm the district court‘s rulings in all respects and grant Mr. Watkins‘s motion to proceed IFP.
JEROME A. HOLMES
Circuit Judge