* This order and judgment is not binding precedent, except under the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.

F I L E D

United States Court of Appeals

Tenth Circuit

AUG 17 2004

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

DOUGLAS WEST,

Plaintiff-Appellant,

v.

DIANNE KOLAR, Law Library

Supervisor; FELIX KELLY,

Investigation officer; T JONES,

Sergeant disciplinary hearing officer;

REGINALD HINES, Warden;

KIMBERLY OWENS, Records;

MELINDA GUILFOYLE, Designee;

RONALD WARD, Director DOC State

of Oklahoma,

Defendants-Appellees.

No. 03-6265

(D.C. No. 02-CV-1451-M)

(W.D. Okla.)

ORDER AND JUDGMENT *

Before HENRY , MURPHY , and TYMKOVICH , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination
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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.

Douglas West, an inmate of the State of Oklahoma proceeding pro se,

brought this civil rights action pursuant to 42 U.S.C. § 1983. The district court

granted summary judgment to defendants on three of the claims in his complaint. 

It dismissed his remaining claims because it found that West had not exhausted

his administrative remedies as to those claims. While we agree with the district

court that West did not exhaust all of the claims presented in his § 1983

complaint, a different disposition is required. The district court should have

either dismissed the entire complaint to permit West to exhaust his administrative

remedies or, in the alternative, have given West the opportunity to dismiss his

unexhausted claims and to proceed solely on those he had exhausted. For this

reason, we vacate the district court’s order and remand.

West’s complaint contains nine claims for relief. The magistrate judge

assigned to this case concluded that West failed to exhaust his administrative

remedies pertaining to Counts One, Two, Six, Seven, Eight, and Nine, and

recommended that these counts therefore be dismissed without prejudice. He

further recommended that summary judgment be granted to the defendants on the

exhausted claims, Counts Three, Four, and Five. The district court adopted the

magistrate judge’s recommendation. 
-3-

1. West’s challenge to exhaustion

West challenges the district court’s disposition of his complaint, contending

that all of his claims have been exhausted. We review de novo the issue of

whether West exhausted his administrative remedies. Jernigan v. Stuchell , 304

F.3d 1030, 1032 (10th Cir. 2002). The pertinent statutory provision provides that

“[n]o action shall be brought with respect to prison conditions under section 1983

of this title, or any other Federal law, 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.A. § 1997e(a). 

The Oklahoma Department of Corrections provides a multi-step inmate

grievance procedure. See R. doc. 22, ex. A. Having reviewed the record in this

case, we agree with the district court that West failed to complete this grievance

procedure as to the claims raised in Counts One, Two, Six, Seven, Eight, and

Nine of his § 1983 complaint.

The district court concluded that no such exhaustion problem existed as to

Counts Three, Four, and Five of West’s complaint. These counts relate to a

disciplinary procedure instituted against West for lying to staff about having a

court deadline and needing additional library time. The grievance policy provides

that “[m]isconduct reports received through the department disciplinary

procedures may not be appealed through the grievance process,” but are instead
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appealed through the misconduct appeals process. Id. at 2 (Grievance Policy, Part

II(b)(1)). The record reflects that West completed the misconduct appeals process

as it relates to Counts Three, Four, and Five.

West contends, however, that he also raised the remaining six counts in his

§ 1983 complaint during the course of the misconduct appeals process. The

“Offender’s Misconduct Appeal Form” reflects that he did present the essence of

Counts One, Two, and at least a portion of Count Seven as part of his misconduct

appeal. See R. doc. 23, Att. K. These counts, however, concerned much broader

issues than those involved in the misconduct proceedings. Count One charged a

deprivation of meaningful access to the courts by denial of law library access. 

Count Two asserted West’s right to assist other inmates with their legal work. 

The first portion of Count Seven asserted a denial of law library access. These

counts should have been exhausted through the grievance procedure rather than as

part of the misconduct appeal, and they therefore remain unexhausted for

purposes of § 1997e(a). The remainder of Count Seven (pertaining to space in

the library, the ability to check out law library books, and the posted law library

hours) and the claims raised in Counts Eight and Nine were not even raised in the

misconduct appeal and therefore also remain unexhausted.
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2. Proper disposition of the complaint

West’s complaint is a “mixed” complaint, containing both exhausted and

unexhausted claims. We recently determined, analogizing to the rule for habeas

corpus cases established in Rose v. Lundy , 455 U.S. 509 (1982), that where an

inmate files a “mixed” § 1983 complaint, “the district court must ordinarily

dismiss the entire action without prejudice” to permit the inmate to exhaust his

unexhausted claims. Ross v. County of Bernalillo , 365 F.3d 1181, 1190 (10th Cir.

2004). It also follows from the adaptation of the rule in Rose v. Lundy that the

district court may permit an inmate who has filed a mixed complaint in a § 1983

complaint to dismiss voluntarily his unexhausted claims and to proceed only on

those he has exhausted. See Rose , 455 U.S. at 510. For these reasons, we must

vacate the district court’s order, to the extent it granted summary judgment on

West’s Counts Three, Four, and Five, and remand for either complete dismissal

for failure to exhaust or to give West an opportunity to voluntarily dismiss his

unexhausted claims. 
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The judgment of the district court is VACATED, and the case is

REMANDED for further proceedings in accordance with this order and judgment.

Entered for the Court

Michael R. Murphy 

Circuit Judge