FILED

United States Court of Appeals

Tenth Circuit

June 8, 2010

Elisabeth A. Shumaker

Clerk of Court PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GARY LITTLE,

Plaintiff - Appellant,

v.

JUSTIN JONES, DOC Director; DEBBIE

MORTON, DOC Director's Designee;

GREG PROVINCE, MACC Warden;

ANITA TRAMMELL, MACC Deputy

Warden; BOB BIBERSTINE, MACC

Chaplain; DONNA VISOTSKI; REGINA

HICKS; CECIL GIBBONS; MS. WYSE,

MACC Food Supervisors, 

Defendants - Appellees.

No. 08-7095

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

(D. Ct. No. 6:07-CIV-00177-RAW-SPS)

Jessica E. Yates, Snell & Wilmer, LLP, Denver, Colorado, appearing for

Appellant.

Jill Tsiakilos, Assistant Attorney General, Oklahoma Attorney General’s Office,

Litigation Section, Oklahoma City, Oklahoma, appearing for Appellees.

Before TACHA, KELLY, and HARTZ, Circuit Judges.

TACHA, Circuit Judge.

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Gary Little, an Oklahoma state prisoner, brought suit under 42 U.S.C. §

1983 alleging the Oklahoma Department of Corrections (“ODOC”) and several

employees and officials at the Mack Alford Correctional Center (collectively

“defendants”), violated his constitutional rights. Upon defendants’ motion, the

district court dismissed Mr. Little’s complaint for failure to exhaust

administrative remedies and denied his motion for a preliminary injunction. We

have jurisdiction under 28 U.S.C. § 1291 and AFFIRM in part, REVERSE in part,

and REMAND.

I. BACKGROUND

Mr. Little entered the custody of the ODOC in June 2004 to serve a tenyear sentence for assault and battery. Since his incarceration, the ODOC has

transferred Mr. Little between Oklahoma correctional facilities at least fourteen

times. From March 26, 2007, through July 25, 2007, Mr. Little was incarcerated

at the Mack Alford Correctional Center (“MACC”) in Stringtown, Oklahoma. 

While at MACC, Mr. Little requested a vegan diet, which consists of plant

foods only and does not include any animal byproducts, including eggs or milk. 

He maintained that the diet was a part of his religious practices as a Seventh Day

Adventist. Initially, Donna Visotski, a food supervisor at MACC, agreed with

Mr. Little’s request and began providing him with his desired diet. During this

time, Mr. Little also began working with MACC Chaplain Bob Biberstine to set

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Mr. Little had previously filed two grievances with Warden Province. The

first, filed on April 19, 2007, raised the vegan diet issue but was returned because

there was no RTS attached. The second, filed on April 26, 2007, requested that

Deputy Warden Trammell formally respond to Mr. Little’s April 11 RTS so that

he could properly appeal her decision. 

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up a diet and appropriate menu. 

On April 11, 2007, Mr. Little filed a Request to Staff (“RTS”) with

Chaplain Biberstine and Deputy Warden Anita Trammell complaining that MACC

had “no policy on vegetarians” and requesting that his “religious diet [be]

honored.” The next day, Mr. Little filed a religious diet request form. Because

the form did not contain an option to request a vegan diet, Mr. Little wrote in

“vegan vegetarian diet.” Deputy Warden Trammell answered Mr. Little’s

religious diet request that same day, crossing out the hand-written line “vegan

vegetarian diet” and approving Mr. Little for a “meat free” diet. Additionally,

Deputy Warden Trammell issued a memorandum to Ms. Visotski instructing her

that “[u]nder no circumstances will Food Service prepare meals based on an

inmate’s individual request.” The memorandum further provided that the only

special religious diets allowed were “Meat Free,” “Pork Free,” and “Kosher.” 

On April 27, 2007, Deputy Warden Trammell responded to Mr. Little’s

April 11 RTS, informing him that he had been placed on a “non-meat diet” and

would “receive double portions of vegetables, fruit if available and peanut

butter.” Mr. Little immediately filed a grievance with Warden Greg Province.1

 In

the grievance, Mr. Little maintained that Deputy Warden Trammell had denied his

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request for a vegan diet in violation of his First Amendment rights. Mr. Little

stated that he often went hungry because the meat-free diet Deputy Warden

Trammell approved contained foods with animal byproducts that he could not eat

pursuant to his faith. He also complained that he had submitted an RTS to the

medical unit on April 16, 2007, concerning the health repercussions from the lack

of a balanced diet, but had not yet been scheduled for an appointment, and that

Chaplain Biberstein was “protect[ing] the Jews and Muslim Religions [sic] but

will not protect mine.” 

Warden Province answered Mr. Little’s grievance on April 30, 2007. In his

response, Warden Province reiterated Deputy Warden Trammell’s earlier

determination that Mr. Little would be placed on a non-meat diet and would

receive double portions of vegetables, peanut butter, and fruit, if available. On

May 3, 2007, Mr. Little appealed from Warden Province’s decision, raising nearly

identical concerns as those asserted in his grievance. Two weeks later, Debbie

Morton, the ODOC Director’s Designee, returned Mr. Little’s grievance appeal

unanswered on the grounds that he included “more than 1 issue.” Ms. Morton

also indicated that the appeal improperly submitted additional issues not

presented in the initial grievance and “[n]ew evidence, such as your claim that

you only received two bananas and two apples on your food tray.” 

On June 15, 2007, Mr. Little filed a pro se complaint in the district court

pursuant to § 1983. In his complaint, Mr. Little alleges that prison officials at

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MACC denied him a vegan diet in violation of his rights under the First

Amendment and the Due Process and Equal Protection Clauses of the Fourteenth

Amendment. Mr. Little seeks injunctive and declaratory relief. 

The ODOC transferred Mr. Little to Lawton Correctional Facility on July

25, 2007, where he again requested and was denied a vegan diet. He filed a

grievance and a grievance appeal, the latter of which was returned unanswered on

the basis that ODOC policy does not allow an inmate to grieve an issue that is

pending in litigation. 

On October 22, 2007, defendants submitted a motion to dismiss or,

alternatively, for summary judgment. Although they stated that Mr. Little

“properly filed” the April 27, 2007 grievance, defendants argued that his

grievance appeal was procedurally defective. Defendants therefore contended

that Mr. Little had not exhausted his administrative remedies. In addition,

defendants argued that Mr. Little’s First Amendment claim was meritless because

he was already receiving a special diet based on his requests, even if it fell short

of Mr. Little’s “personal preferences,” and that his claim had become moot

because he had been transferred to another facility. 

While defendants’ motion was pending, Mr. Little was transferred several

more times. On April 21, 2008, he filed an application for a preliminary

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Mr. Little’s motion was styled Application for Temporary Restraining

Order. Because he seeks injunctive relief pending the final resolution of his case,

we construe it as a motion for a preliminary injunction.

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injunction with the district court.2 Mr. Little stated that he was facing “hostility,

resentment and retaliation” at Joseph Harp Correctional Center (“JHCC”) after

again requesting a vegan diet. He asked the court to order the ODOC Director

and staff at JHCC to provide him with his desired diet “pending the outcome of

this litigation.” 

On September 18, 2008, the district court granted defendants’ motion to

dismiss, finding that Mr. Little had not exhausted his administrative remedies. It

also denied Mr. Little’s motion for a preliminary injunction after concluding that

the motion lacked a sufficient relationship to the complaint. Mr. Little now

appeals both rulings.

II. DISCUSSION

A. Exhaustion of Administrative Remedies

The district court found that Mr. Little had not exhausted his administrative

remedies for the claims he asserted in his complaint. “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).

Under the Prisoner Litigation Reform Act (“PLRA”), a prisoner must

exhaust his administrative remedies prior to filing a lawsuit regarding prison

conditions in federal court. 42 U.S.C. § 1997e(a); Booth v. Churner, 532 U.S.

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The grievance procedures define “Administrative Review Authority” as

“[t]he director, chief medical officer, or their designee to whom the formal

grievance is submitted for final appeal.” Oklahoma Department of Corrections

Inmate/Offender Grievance Process, § I(E).

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731, 741 (2001). Indeed, “unexhausted claims cannot be brought in court.” Jones

v. Bock, 549 U.S. 199, 211 (2007). Because the prison’s procedural requirements

define the steps necessary for exhaustion, id. at 218, an inmate may only exhaust

by properly following all of the steps laid out in the prison system’s grievance

procedure. Woodford v. Ngo, 548 U.S. 81, 90 (2006). “An inmate who begins the

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

. . . .” Jernigan, 304 F.3d at 1032.

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. See Oklahoma

Department of Corrections Inmate/Offender Grievance Process, § IV.A. If the

matter is not resolved informally, the prisoner must submit an RTS. Id. § IV.B. 

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. Id. § V.A. Finally, a prisoner may appeal the warden’s decision to the

Administrative Reviewing Authority (“ARA”).3

 Id. § VII.B. “The ruling of the

[ARA] . . . is final and [concludes] the internal administrative remedy available to

the inmate . . . .” Id. § VII.D.1.

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The parties agree that Mr. Little attempted to comply with all four steps of

the grievance process with regard to his desired diet. His grievance appeal,

however, was returned unanswered by the ARA—Ms. Morton—because it

contained “more than 1 issue.” Defendants argue that because Mr. Little failed to

obtain a ruling on the merits of his grievance appeal, he did not exhaust his

administrative remedies. Mr. Little contends, however, that he has exhausted all

“available” administrative remedies. He argues that the ODOC rendered the final

step of the grievance process unavailable to him by improperly rejecting his

appeal and by not providing him with an opportunity to resubmit it. We agree

with Mr. Little that the ARA lacked the authority to reject his appeal for raising

more than one issue and thereby prevented him from completing the grievance

process.

Under a plain reading of the ODOC grievance procedures, the ARA does

not have the authority to reject an appeal because it contains multiple issues. 

Although the procedures expressly state that a prisoner may raise only “one issue

or incident” in both the RTS and the grievance, there is no comparable limitation

on appeals to the ARA. Compare id. §§ IV.B.2 and V.A.4 with § VII. Moreover,

the grievance appeal provisions provide that “[a]dditional issues submitted in the

grievance appeal and not presented in the initial grievance . . . will not be

addressed.” § VII.B.5. Although this language clearly informs prisoners that

issues raised for the first time to the ARA will not be considered, it also implies

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that if an otherwise properly filed grievance appeal raises more than one issue,

the previously submitted issue will be considered.

Other provisions of the grievance procedures support this reading. Section

V.A.7, for example, expressly grants the warden the power to “return the

grievance unanswered for proper completion” when a prisoner’s grievance

contains a procedural defect. Again, however, the grievance procedures do not

endow the ARA with similar authority. Thus, the ARA exceeded its authority

when it returned Mr. Little’s appeal unanswered.

We have previously noted that the PLRA only requires the exhaustion of

“available” administrative remedies. Jernigan, 304 F.3d at 1032; 42 U.S.C. §

1997(e)(a) (requiring exhaustion of “such administrative remedies as are

available”). In fact, we have stated that district courts are “obligated to ensure

that any defects in exhaustion were not procured from the action or inaction of

prison officials” before dismissing a claim for failure to exhaust. AquilarAvellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007). Where prison

officials prevent, thwart, or hinder a prisoner’s efforts to avail himself of an

administrative remedy, they render that remedy “unavailable” and a court will

excuse the prisoner’s failure to exhaust. See Lyon v. Vande Krol, 305 F.3d 806,

808 (8th Cir. 2002) (en banc) (“[W]e have held that inmates cannot be held to the

exhaustion requirement of the PLRA when prison officials have prevented them

from exhausting their administrative remedies.”). That is precisely the case

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before us today.

Mr. Little asserted his right to a vegan diet at every level of the

administrative process. To the extent that Mr. Little asserted additional issues in

his grievance appeal, the ARA was authorized to ignore them and address only

the merits of the diet issue. It was not, however, authorized to reject his

grievance appeal in toto. Because the ARA exceeded its authority when it

rejected Mr. Little’s grievance appeal, it rendered that final step of exhaustion

unavailable. Accordingly, we excuse Mr. Little’s failure to exhaust

administrative remedies regarding his claim to a vegan diet as part of his religious

practices and hold that the district court erred in dismissing his complaint.

B. Motion for a Preliminary Injunction

The district court denied Mr. Little’s motion for a preliminary injunction as

insufficiently related to the conduct addressed in his complaint. We review the

denial of a preliminary injunction for abuse of discretion. Wilderness Workshop,

et al. v. U.S. Bureau of Land Mgmt., et al., 531 F.3d 1220, 1223 (10th Cir. 2008). 

“An abuse of discretion occurs only when the trial court bases its decision on an

erroneous conclusion of law or where there is no rational basis in the evidence for

the ruling.” Id. at 1223–24. “We have previously characterized an abuse of

discretion as an arbitrary, capricious, whimsical, or manifestly unreasonable

judgment.” Att’y Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir.

2009) (quotations omitted).

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When seeking a preliminary injunction, “the moving party must

demonstrate: (1) a likelihood of success on the merits; (2) a likelihood that the

movant will suffer irreparable harm in the absence of preliminary relief; (3) that

the balance of equities tips in the movant’s favor; and (4) that the injunction is in

the public interest.” Id. (citing RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208

(10th Cir. 2009)). In addition, the movant must establish “a relationship between

the injury claimed in the party’s motion and the conduct asserted in the

complaint.” Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994). A

mandatory preliminary injunction—one which requires the nonmoving party to

take affirmative action—is “an extraordinary remedy” and is generally disfavored. 

Tyson Foods, Inc., 565 F.3d at 776. Before a court may grant such relief, the

movant must “make a heightened showing of the [] four factors.” Id. 

In his motion, Mr. Little sought an injunction directing prison officials at

JHCC to provide him with a vegan diet, including fruits, vegetables, and protein

substitutes, pending the resolution of this case. In ruling on the motion, the

district court noted that Mr. Little requested relief only against prison officials at

JHCC, but that he had not attempted to amend his complaint to include the JHCC

claims nor had he alleged that the defendants named in the complaint participated

in the alleged deprivations at JHCC. Furthermore, neither the complaint nor the

motion for a preliminary injunction alleges a system-wide denial of Mr. Little’s

First Amendment rights. In fact, Mr. Little concedes in his motion for a

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preliminary injunction that he received his desired diet at other ODOC facilities,

undercutting any potential claim of system-wide denial. Therefore, the district

court held that “[a]lthough plaintiff’s new allegations might support relief against

the JHCC officials,” the claims did not support the issuance of a preliminary

injunction in this case. 

Considering the standards applicable to the grant of a preliminary

injunction and the allegations in the complaint and motion for a preliminary

injunction, we cannot say that the district court’s conclusion was a manifestly

unreasonable judgment. Accordingly, we affirm the denial of Mr. Little’s motion

for a preliminary injunction in this case.

III. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s order

dismissing Mr. Little’s complaint and REMAND for further proceedings. We

AFFIRM the district court’s denial of his motion for a preliminary injunction.

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