UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

IVETTE FIGUEROA, 

 Plaintiff-Appellant, 

v. 

OKLAHOMA DEPARTMENT OF 

CORRECTIONS; JUSTIN JONES, 

Director DOC; MIKE JACKSON, Chief 

of Medical Services; JOHN DOE, 

Warden, Lexington OK; MILLICENT 

NEWTON-EMBRY, Warden, Mabel 

Bassett; MIKE MURRAY, Deputy 

Warden, Mabel Bassett; MS. IPAYE, 

Kitchen Manager; MS. AMUS, Kitchen 

Supervisor; DR. MCMASTER, Doctor, 

Mabel Bassett; JANE DOE, Inmate Trust 

Fund; JANE DOE, Medical Accounts 

Payable; MS. HURLEY, Officer, 

Isolation Unit; NURSE NUNN, Mable 

Bassett; DENNIS COTNER, Medical 

Services; MR. HENDRICKSON, Case 

Manager; VALETA DUNCAN, SATP 

Director; SONI FORT, Records Officer 

MBCC; MIKE MURRY, Deputy 

Warden; OLA ONAJOBI, Unit Manager; 

SHOLA SHOPEYIN, Unit Manager; 

WARDEN ERIC FRANKLIN, 

 Defendants-Appellees, 

and 

SHOLA SHOEPEYING; MS. 

ANAYOBI, Unit Manager; JANE DOE, 

Director SATP, 

 Defendants. 

No. 12-6099 

(D.C. No. 5:10-CV-00760-M) 

(W.D. Okla.)

FILED 

United States Court of Appeals 

Tenth Circuit 

November 1, 2012

Elisabeth A. Shumaker 

Clerk of Court
- 2 - 

 

ORDER AND JUDGMENT*

 

Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges. 

 

 Plaintiff Ivette Figueroa, proceeding pro se, appeals from dismissal of her 

42 U.S.C. § 1983 prisoner civil rights complaint. We have jurisdiction under 

28 U.S.C. § 1291, and we affirm. 

BACKGROUND

 Ms. Figueroa’s claims arise out of her custody by the Oklahoma Department of 

Corrections (ODOC) during the time period 2006 through 2010. She has since 

discharged her Oklahoma sentence and was released from ODOC custody on 

August 4, 2010. She is currently in the custody of the Arkansas Department of 

Corrections. Ms. Figueroa’s amended complaint includes allegations that ODOC 

prison officials discriminated against her on account of her sexual preference; denied 

her medical treatment, dietary needs, and toiletries; removed money from her trust 

account; forced her to climb stairs when unable; opened her mail; and only tolerated 

Christian religious activities. She seeks compensatory and punitive damages. 

 

*

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

unanimously to grant the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 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. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 
- 3 - 

 A group of Defendants1

 filed a motion to dismiss pursuant to Fed. R. Civ. P. 

12(b)(1) and 12(b)(6) for, among other things, Ms. Figueroa’s failure to exhaust her 

administrative remedies pursuant to 42 U.S.C. § 1997e(a). In the alternative, Group 

1 Defendants moved for summary judgment under Fed. R. Civ. P. 56(b). 

Ms. Figueroa also submitted a motion for summary judgment. The magistrate judge 

recommended summary judgment against Ms. Figueroa on the issue of exhaustion. 

Ms. Figueroa filed a timely objection to the report and recommendation. On 

March 30, 2012, the district court conducted a de novo review, adopted the 

magistrate judge’s report and recommendation, and granted summary judgment for 

Group 1 Defendants on exhaustion grounds. Ms. Figueroa appealed on April 12, 

2012. 

 Group 2 Defendants, though, had not yet been dismissed from the case. After 

conducting an initial review of Ms. Figueroa’s amended complaint pursuant to 

 

1

 Group 1 Defendants include Justin Jones, Director DOC; John Doe, Warden, 

Lexington OK (identified as Warden Eric Franklin); Millicent Newton-Embry, 

Warden, Mabel Bassett; Mr. Hendrickson, Case Manager; Jane Doe, Inmate Trust 

Fund (identified as Soni Fort, Records Officer); Jane Doe, Director SATP (identified 

as Valeta Duncan, SATP Director); Mike Murry, Deputy Warden, Mabel Bassett 

(spelled Mike Murray in amended complaint); Ola Onajobi, Unit Manager (spelled 

Ola Anayobi in amended complaint); and Shola Shopeyin, Unit Manager (spelled 

Shola Shopeying in amended complaint). 

 Group 2 Defendants include Mike Jackson, Chief of Medical Services; 

Ms. Ipaye, Kitchen Manager; Ms. Amus, Kitchen Supervisor; Dr. McMaster, Doctor, 

Mabel Bassett; Jane Doe, Medical Accounts Payable; Ms. Hurley, Officer, Isolation 

Unit; Nurse Nunn, Mable Bassett (properly identified as Nurse Nelms); and Dennis 

Cotner, Medical Services. 
- 4 - 

28 U.S.C. §§ 1915 and 1915A, the magistrate judge issued a second report and 

recommendation recommending dismissal of Ms. Figueroa’s claims against Group 2 

Defendants on the grounds of failure to state a claim upon which relief can be 

granted. Ms. Figueroa filed an objection, but it was untimely. On April 16, 2012, 

the district court, conducting a de novo review despite the absence of an objection, 

adopted the second report and recommendation and dismissed Ms. Figueroa’s claims 

against Group 2 Defendants pursuant to §§ 1915 and 1915A. The district court 

declined to exercise jurisdiction over Ms. Figueroa’s state-law claims and dismissed 

them without prejudice. Also on April 16, 2012, the district court entered a Fed. R. 

Civ. P. 58 final judgment dismissing the entire action. Ms. Figueroa filed an 

untimely amended notice of appeal on June 14, 2012. 

DISCUSSION 

 We must first consider our jurisdiction over Ms. Figueroa’s appeal. In general, 

a party may not appeal until entry of a final order. See 28 U.S.C. § 1291. 

Ms. Figueroa filed her first notice of appeal before the Group 2 Defendants had been 

dismissed from the case. This premature notice of appeal may have ripened when the 

district court entered its final order disposing of the remaining claims and defendants. 

See, e.g., Fed. R. App. P. 4(a)(2); Fields v. Okla. State Penitentiary, 511 F.3d 1109, 

1112 (10th Cir. 2007); Copeland ex rel. Copeland v. Toyota Motors Sales U.S.A., 

Inc., 136 F.3d 1249, 1251-52 (10th Cir. 1998). Regardless, Ms. Figueroa filed a 

motion seeking leave to appeal in forma pauperis fourteen days after the entry of 
- 5 - 

judgment. We treat this application as the functional equivalent of a notice of appeal. 

See Fleming v. Evans, 481 F.3d 1249, 1253-54 (10th Cir. 2007) (motion to proceed 

on appeal in forma pauperis may serve as the functional equivalent of a notice of 

appeal).2

 The clear intent of Ms. Figueroa’s filings in this court was to appeal the 

district court’s dismissal of her claims against both groups of Defendants. We 

therefore have jurisdiction over Ms. Figueroa’s appeal. 

 This, however, does not end our analysis. Because Ms. Figueroa failed to 

timely file an objection to the second report and recommendation, she may have 

waived the right to appeal the district court’s dismissal of Group 2 Defendants under 

this circuit’s firm waiver rule. See Key Energy Res. Inc. v. Merrill (In re Key Energy 

Res. Inc.), 230 F.3d 1197, 1199-1200 (10th Cir. 2000) (“This court has adopted a 

‘firm waiver rule’ which provides that a litigant’s failure to file timely objections to a 

magistrate’s report and recommendation waives appellate review of both the factual 

and legal determinations.” (brackets and internal quotation marks omitted)). 

Ms. Figueroa asserts that she was confused by the multiple report and 

 

2

 Even further, in Ms. Figueroa’s untimely objection to the magistrate’s second 

report and recommendation, which she submitted after entry of final judgment, 

Ms. Figueroa stated that she “disagree[s] with the court decision, due to various 

factors[,] w[h]ich will be explained, and also appeal[s].” Aplt. App. Vol. 1 (part 3) 

at 144 (emphasis added). It is appropriate to also construe this submission as the 

functional equivalent of a notice of appeal because it provides the notice required by 

Fed. R. App. P. 3(c)(1). See Smith v. Barry, 502 U.S. 244, 248 (1992). 
- 6 - 

recommendations and she did not understand that she needed to file a second 

objection. She also claims she did not receive the correct forms from the court. 

 The waiver rule applies to a pro se party unless (1) the party has not been 

informed of the time period within which to file objections and the consequences for 

failing to do so, or (2) the “interests of justice” require review. Morales-Fernandez 

v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005).3

 The magistrate judge did inform 

Ms. Figueroa of the time period within which to file an objection to the second report 

and recommendation. However, we believe the interests of justice require review in 

this instance. Ms. Figueroa did make an effort to comply with the magistrate’s 

instruction to file an objection, albeit untimely. Furthermore, Ms. Figueroa was 

faced with two separate response dates to two separate reports and recommendations 

dealing with two sets of defendants—groupings that she had never contemplated. It 

is not implausible that a pro se litigant would have been confused concerning her 

obligation to file a separate objection to the second report and recommendation. 

See id. at 1119-20 (providing several factors to consider in applying the interests of 

justice exception, including a plaintiff’s efforts to comply with instructions and the 

 

3

 We do not find that Group 2 Defendants forfeited their claim to waiver by failing 

to properly object to Ms. Figueroa’s appeal. See Hicks v. Franklin, 546 F.3d 1279, 

1283 n.3 (10th Cir. 2008) (“Because a failure to timely object to a magistrate’s report 

is not jurisdictional, the State has forfeited any claim that we should not consider the 

appeal because of [the plaintiff’s] failure to timely object.” (internal citation 

omitted)). The district court dismissed Group 2 Defendants under its 28 U.S.C. 

§ 1915 obligation to first screen an in forma pauperis complaint; therefore, Group 2 

Defendants had not yet actively participated in the action and did not have the 

opportunity to raise the lack-of-objection issue. 
- 7 - 

plausibility of the explanation for noncompliance). In the utmost concern for justice 

and in order to ensure that Ms. Figueroa has an opportunity to be heard, we conclude 

that the waiver rule should not apply in this case.4

Dismissal of Group 1 Defendants

“We review de novo the district court’s finding of failure to exhaust 

administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 

2002). Exhaustion of available administrative remedies is mandatory under the 

Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). See Booth v. Churner, 

532 U.S. 731, 741 (2001). ODOC has adopted standard grievance procedures: 

The ODOC has a four-step process for administrative exhaustion of 

prisoner claims. Initially, a prisoner must seek to resolve any complaint 

by informally raising the matter with an appropriate staff member. If 

the matter is not resolved informally, the prisoner must submit [a 

Request to Staff]. If the matter still remains unresolved, the prisoner 

may file a Grievance Report Form (“grievance”) with the reviewing 

authority, which is usually the prison’s warden. Finally, a prisoner may 

appeal the warden=s decision to the Administrative Reviewing Authority 

(“ARA”). The ruling of the [ARA] . . . is final and [concludes] the 

internal administrative remedy available to the inmate . . . . 

Little v. Jones, 607 F.3d 1245, 1249 (10th Cir. 2010) (alterations in original) (internal 

quotation marks and citations omitted). Further, “[a]n inmate who begins the 

grievance process but does not complete it is barred from pursuing a § 1983 claim.” 

 

4

 The district court’s de novo review of the second report and recommendation, 

despite the absence of an objection, does not change the analysis. See United States 

v. 2121 East 30th St., 73 F.3d 1057, 1061 (10th Cir. 1996) (“[T]he district court’s 

decision to conduct a de novo review, sua sponte, does not warrant lifting the bar of 

appellate review under the circumstances presented here.”). 
- 8 - 

Jernigan, 304 F.3d at 1032; see also Fields, 511 F.3d at 1112 (“To exhaust 

administrative remedies an inmate must properly comply with grievance procedures; 

substantial compliance is insufficient.”). 

 In her report and recommendation, the magistrate judge extensively outlined 

the grievance steps Ms. Figueroa took to resolve her claims against Group 1 

Defendants. In short, Ms. Figueroa submitted formal grievances for some of her 

claims and failed to submit grievances for other claims. She also failed to complete 

the appeals process for those grievances that she did submit.5

 Thus, we agree with 

the district court that Ms. Figueroa failed to exhaust the available administrative 

remedies for her claims against Group 1 Defendants. 

 Ms. Figueroa’s claim that ODOC grievance procedures do not apply because at 

the time she filed her amended complaint she had discharged her Oklahoma sentence 

and was in the custody of the Arkansas Department of Corrections is mistaken. The 

PLRA applies to a prisoner “confined in any jail, prison, or other correctional 

facility.” 42 U.S.C. § 1997e(a). Further, Ms. Figueroa’s claims relate to her 

confinement in ODOC custody, and she filed her original complaint while she was in 

ODOC custody. “[I]t is the plaintiff’s status at the time he files suit that determines 

 

5

 Ms. Figueroa submitted some of her grievances after the filing of her complaint 

in this action. “[R]esort to a prison grievance process must precede resort to a 

court.” Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1207 (10th Cir. 2003) 

(alteration in original) (quotation marks and citation omitted), abrogated on other 

grounds by Jones v. Bock, 549 U.S. 199 (2007). Further, it appears that 

Ms. Figueroa’s grievances, which she submitted in 2010 for claims against her that 

occurred in 2006-2008, are untimely under ODOC regulations. 
- 9 - 

whether § 1997e(a)’s exhaustion provision applies.” Norton v. City of Marietta, 

Okla., 432 F.3d 1145, 1150 (10th Cir. 2005). 

Dismissal of Group 2 Defendants 

The district court adopted the magistrate judge’s second recommendation and 

dismissed Ms. Figueroa’s claims against Group 2 Defendants pursuant to 28 U.S.C. 

§ 1915(e)(2)(B)(ii) for failure to state a claim. We review de novo an order 

dismissing a prisoner’s § 1983 complaint for failure to state a claim under 

§§ 1915(e)(2)(B)(ii) and 1915A(b)(1). See McBride v. Deer, 240 F.3d 1287, 1289 

(10th Cir. 2001). “If the plaintiff proceeds pro se, the court should construe his 

pleadings liberally and hold the pleadings to a less stringent standard than formal 

pleadings drafted by lawyers.” Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 

1996). “However, the broad reading of the plaintiff’s complaint does not relieve the 

plaintiff of the burden of alleging sufficient facts on which a recognized legal claim 

could be based. . . . [C]onclusory allegations without supporting factual averments 

are insufficient to state a claim on which relief can be based.” Id. (alterations and 

internal quotation marks omitted). 

Again, the magistrate judge succinctly reviewed and analyzed Ms. Figueroa’s 

claims against Group 2 Defendants in the second report and recommendation, and we 

agree that Ms. Figueroa has failed to allege sufficient details to state her claims.6

 

 

6

 “[A] prison official cannot be found liable under the Eighth Amendment for 

denying an inmate humane conditions of confinement unless the official knows of 

(continued) 
- 10 - 

 Accordingly, we AFFIRM the judgment of the district court. We also 

GRANT Ms. Figueroa’s motions to add-on exhibits and to proceed in forma 

pauperis. 

 

 Entered for the Court 

 Jerome A. Holmes 

 Circuit Judge 

 

and disregards an excessive risk to inmate health or safety; the official must both be 

aware of facts from which the inference could be drawn that a substantial risk of 

serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 

511 U.S. 825, 837 (1994). As to the temporary lack of toiletries, the Eighth 

Amendment is not implicated by mere allegations of discomfort or temporary adverse 

conditions posing no risk to a prisoner’s health and safety. See Hudson v. McMillian, 

503 U.S. 1, 9 (1992). Further, Ms. Figueroa’s claims for lack of adequate nutrition 

and medical care also fail to state the required particularity. See Thompson v. 

Gibson, 289 F.3d 1218, 1222 (10th Cir. 2002); Perkins v. Kan. Dep’t of Corr., 

165 F.3d 803, 811 (10th Cir. 1999). Finally, an isolated instance of mail being 

opened “without any evidence of improper motive or resulting interference with [the] 

right to counsel or to access to the courts” is insufficient to establish a constitutional 

violation. See Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990).