UNITED STATES CO URT 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; VALET A 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 ci vil rights complaint. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

BACKGROUND Ms. Figueroa’s claims arise out of he r custody by the Oklahoma Department of Corrections (ODOC) during the time peri od 2006 through 2010. She has since discharged her Oklahoma sentence and was released from ODOC custody on August 4, 2010. She is currently in th e custody of the Arkansas Department of Corrections. Ms. Figueroa’s amended co mplaint includes allegations that ODOC prison officials discriminated against her on account of her sexual preference; denied her medical treatment, dietar y 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 seek s compensatory and punitive damages.

* After examining the briefs and appella te record, this pa nel 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.- 3 - A group of Defendants 1 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 judgmen t under Fed. R. Civ. P. 56(b). Ms. Figueroa also submitted a motion for su mmary 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 c onducted a de novo review, adopted the magistrate judge’s report and recommendation, and granted summary judgment for Group 1 Defendants on exhaus tion grounds. Ms. Figueroa appealed on April 12,

2012. Group 2 Defendants, though, had not yet been di smissed from the case. After conducting an initial review of Ms. Fi gueroa’s amended complaint pursuant to

1 Group 1 Defendants include Just in Jones, Director DOC; John Doe, Warden, Lexington OK (identified as Warden Er ic Franklin); Millicent Newton-Embry, Warden, Mabel Bassett; Mr. Hendrickson, Ca se Manager; Jane Doe, Inmate Trust Fund (identified as Soni Fort, Records Offi cer); Jane Doe, Direct or SATP (identified as Valeta Duncan, SATP Director); Mike Murry, Deputy Warden, Mabel Bassett (spelled Mike Murray in amended compla int); Ola Onajobi, Unit Manager (spelled Ola Anayobi in amended complaint); a nd Shola Shopeyin, Unit Manager (spelled Shola Shopeying in amended complaint). Group 2 Defendants include Mike J ackson, Chief of Medical Services; Ms. Ipaye, Kitchen Manager; Ms. Amus, Ki tchen Supervisor; Dr . McMaster, Doctor, Mabel Bassett; Jane Doe, Medi cal 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 magist rate 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 untim ely. On April 16, 2012, the district court, conducting a de novo revi ew despite the absence of an objection, adopted the second report and recommendati on and dismissed Ms. Figueroa’s claims against Group 2 Defendants pursuant to §§ 1915 and 1915A. Th e district court

declined to exercise jurisdiction over Ms. Figueroa’s state-law claims and dismissed them without prejudice. Also on April 16, 20 12, 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 app eal. 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 app eal 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 fina l order disposing of the remain ing 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 app lication as the functional equiva lent 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 fi lings in this court was to appeal the

district court’s dism issal of her claims against bot h groups of De fendants. We therefore have jurisdiction over Ms. Figueroa’s appeal. This, however, does not end our analys is. Because Ms. Figueroa failed to timely file an objection to the second re port and recommendation, she may have waived the right to appeal the district court’s dismis sal 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 provide s that a litigant’s failure to file timely objections to a magistrate’s report and reco mmendation waives appellate review of both the factual and legal determinations.” (brackets a nd 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 subm itted after entry of final judgment, Ms. Figueroa stated that she “disagree[s] with the court decisi on, 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 cons true this submission as the functional equivalent of a no tice 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 understa nd that she needed to file a second objection. She also claims she did not receive the corr ect 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 objecti ons and the consequences for failing to do so, or (2) the “inter ests of justice” require review. Morales-Fernandez

v. INS , 418 F.3d 1116, 1119 (1 0th 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 th e interests of justi ce require review in this instance. Ms. Figueroa did make an effort to comp ly with the magistrate’s instruction to file an objec tion, albeit untimely. Fu rthermore, Ms. Figueroa was faced with two separate response dates to two separate reports and recommendations dealing with two sets of de fendants—groupings that she ha d 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 in structions and the

3 We do not find that Group 2 Defendants forfeited th eir 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) (“Be cause a failure to timely object to a magistrate’s report is not jurisdictional, the Stat e has forfeited any claim that we should not consider the appeal because of [the plaintiff’s] fa ilure to timely object.” (internal citation omitted)). The district court dismisse d 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 participat ed in the action and did not have the opportunity to raise the lack-of-objection issue.- 7 - plausibility of the explanation for noncomplia nce). 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 cour t’s finding of failure to exhaust

administrative remedies.” Jernigan v. Stuchell , 304 F.3d 1030, 1032 (10th Cir. 2002). Exhaustion of availa ble administrative remedi es is mandatory under the Prison Litigation Reform Act (P LRA), 42 U.S.C. § 1997e(a). See Booth v. Churner , 532 U.S. 731, 741 (2001). ODOC has a dopted standard grievance procedures: The ODOC has a four-step process for administrative exhaustion of prisoner claims. Initially, a prisoner must seek to reso lve any complaint by informally raising the matter with an appropriate staff member. If the matter is not resolved inform ally, the prisoner must submit [a Request to Staff]. If the matter s till 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 Administ rative Reviewing Authority (“ARA”). The ruling of the [ARA] . . . is final and [concludes] the internal administrative remedy av ailable to the inmate . . . .

Little v. Jones , 607 F.3d 1245, 1249 (10th Cir. 2010) (a lterations in or iginal) (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 revi ew of the second report and recommendation, despite the absence of an objection, does not change the analysis. See United States v. 2121 East 30 th St. , 73 F.3d 1057, 1061 (10th Cir. 1996) (“[T]he district court’s decision to conduct a de novo review, sua sp onte, does not warrant lifting the bar of appellate review under the circ umstances presented here.”).- 8 - Jernigan , 304 F.3d at 1032; see also Fields , 511 F.3d at 1112 (“To exhaust administrative remedies an inmate must pr operly comply with grievance procedures; substantial compliance is insufficient.”). In her report and recommendation, the magistrate judge ex tensively outlined the grievance steps Ms. Figueroa took to resolve her claims against Group 1 Defendants. In short, Ms. Figueroa submitted formal gr ievances for some of her claims and failed to submit gr ievances for other claims. Sh e also failed to complete the appeals process for those gr ievances 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 agai nst Group 1 De fendants. Ms. Figueroa’s claim that ODOC grievan ce procedures do not apply because at

the time she filed her ame nded complaint she had discharged her Oklahoma sentence and was in the custody of the Arkansas Depa rtment 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. Figuero a’s claims relate to her confinement in ODOC custody, and she filed her original complain t 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 gr ievance process must precede resort to a court.” Steele v. Fed. Bureau of Prisons , 355 F.3d 1204, 1207 (10th Cir. 2003) (alteration in original) (quota tion marks and citation omitted), abrogated on other grounds by Jones v. Bock , 549 U.S. 199 (2007). Fu rther, it appears that Ms. Figueroa’s grievances, which she submitte d in 2010 for claims against her that occurred in 2006-2008, are un timely under ODOC regulations.- 9 - whether § 1997e(a)’s exhaus tion 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 magist rate judge’s second recommendation and dismissed Ms. Figueroa’s claims against Group 2 Defendants purs uant 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 th e pleadings to a less stringe nt 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 suffici ent facts on which a recognized legal claim could be based. . . . [C]onc lusory allegations without supporting factual averments

are insufficient to st ate 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 s econd report and reco mmendation, and we agree that Ms. Figueroa has fa iled 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 dist rict court. We also GRANT Ms. Figueroa’s motions to a dd-on exhibits and to proceed in forma pauperis

.

Entered for the Court

Jerome A. Holmes Circuit Judge

and disregards an excessive ri sk to inmate health or safe ty; the official must both be aware of facts from which the inference coul d 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 discom fort or temporary adverse conditions posing no risk to a prisoner’s health and safety. See Hudson v. McMillian , 503 U.S. 1, 9 (1992). Furthe r, 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 mo tive or resulting inte rference with [the] right to counsel or to access to the courts” is insufficient to esta blish a constitutional violation. See Smith v. Maschner , 899 F.2d 940, 944 (10th Cir. 1990).