FILED

United States Court of Appeals

Tenth Circuit

August 25, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SAMUEL ROBERT QUEEN,

Plaintiff-Appellant,

v.

EDWARD McINTIRE, Senior

Correctional Officer, USPLeavenworth, in his individual

capacity; JAMES THOMACEE,

Senior Correctional Officer, USPLeavenworth, in his individual

capacity; BRET JESTES, Senior

Correctional Officer, USPLeavenworth, in his individual

capacity; C. GOODWIN, Senior

Correctional Officer, USPLeavenworth, in his individual

capacity; MICHAEL GRAY, Senior

Correctional Officer, USPLeavenworth, in his individual

capacity; STEVEN LACY,

Disciplinary Hearing Officer, USPLeavenworth, in his individual

capacity; D. WITTLAUFER,

Lieutenant, Senior Correctional

Officer, USP-Leavenworth, in his

individual capacity; G. L.

HERSHBERGER, Regional Director,

in his individual capacity; JOHN

CHILDS, Counselor, Senior

Correctional Officer, USPLeavenworth, in his individual

capacity; E. J. GALLEGOS, Warden,

USP-Leavenworth, in his individual

capacity; MICHAEL MILDER, Unit

Manager, USP-Leavenworth, in his

individual capacity; MICHAEL

No. 08-3058

(D.C. No. 05-CV-3275-SAC)

(D. Kan.)
*

 This order and judgment is not binding precedent except under the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

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NALLEY, Regional Director, USPLeavenworth, in his individual

capacity, 

Defendants-Appellees.

ORDER AND JUDGMENT*

Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.

Samuel Robert Queen, a federal prisoner proceeding pro se, appeals the

district court’s dismissal of his lawsuit against several prison guards and officials

at the United States Penitentiary in Leavenworth, Kansas, alleging violations of

his First, Fourth, Fifth, Eighth and Fourteenth Amendment rights. Defendants

moved to dismiss on a variety of grounds. The district court ultimately granted

the motion on the basis that he failed “to exhaust administrative remedies

properly under 42 U.S.C. § 1997e.” We review this decision de novo. Jernigan

v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). Given that Mr. Queen is

proceeding pro se, we review his pleadings and other papers liberally. Van

Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
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 Even with these standards firmly in mind, we are compelled to agree with

the district court. As defendants have pointed out, and the district court found,

of the twelve administrative grievances filed by Mr. Queen, all but one was

rejected for Mr. Queen’s failure to follow appropriate procedural steps. R., Doc.

42 at 9-14. Mr. Queen’s own evidence demonstrates that he knew his complaints

were rejected as being procedurally deficient, but he still failed to pursue

administrative appeals or correct identified errors. See R., Doc. 48, Exs. 2-6, 12,

13,16; Doc. 42, Exs. 1-4. With respect to his single procedurally effective claim,

after Mr. Queen received an adverse response from the warden it is undisputed

that he failed to pursue the matter through the administrative appellate

mechanisms available to him. R., Doc. 42 at 10, Ex. 1. 

Mr. Queen replies before us, as he did in the district court, that he should

be excused from the exhaustion requirements because defendants made the

grievance process “unavailable” to him. Op. Br. at 1. Specifically, he alleges

that he was “limited in [his] ability to access [his] unit team members” because

they would “avoid[] visiting [his] cell area to accept grievances and return

grievances.” Id. In support of his claim, Mr. Queen submitted to the district

court certain affidavits purportedly from other inmates. The district court found

the affidavits of dubious authenticity and thus entitled to little weight, and we

cannot disagree with that conclusion. Several of the affidavits contain

typewritten signatures, and were dated Friday, December 1, 2006, at locations
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throughout the county, yet submitted by Mr. Queen together on Monday,

December 4, 2006 (something that would not be possible through the prison mail

system), suggesting that Mr. Queen created them himself. R., Doc. 48, Exs. 19-

33; Doc. 53 at 36-38 (citing Declaration of Mary A. Benning, Declaration of

Laura A. Mason, and Declaration of Jonathan Kaminski). Further, Mr. Queen

was not approved to correspond with other inmates at the time the affidavits were

purportedly signed, R., Doc. 53 at 38 (citing Declaration of Laura A. Mason),

and several of the inmates who signed affidavits were never incarcerated at

Leavenworth with Mr. Queen, R., Doc. 53 at 38 (citing Declaration of Mary A.

Benning). 

Accordingly, we affirm the district court’s determination that Mr. Queen

did not exhaust his administrative remedies and that his claims were not properly

excused from exhaustion. Mr. Queen is reminded that he must continue making

payments until the full balance of the appellate filing fee in this matter is paid.

ENTERED FOR THE COURT

Neil M. Gorsuch

Circuit Judge