*

This order and judgment is not binding precedent except under the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

FILED

United States Court of Appeals

Tenth Circuit

June 4, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DON A. HOWARD,

Plaintiff - Appellant, No. 10-7008

v. (E.D. Oklahoma)

BRANDI BIRCHFIELD and RANDY

HOLLAND,

Defendants - Appellees.

(D.C. No. 6:09-CV-00400-FHS-SPS)

ORDER AND JUDGMENT*

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.

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

unanimously that oral argument would not materially assist in the determination

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.

Appellate Case: 10-7008 Document: 01018434664 Date Filed: 06/04/2010 Page: 1 
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Plaintiff and appellant, Don A. Howard, a state prisoner proceeding pro se,

appeals the dismissal of his 42 U.S.C. § 1983 claim that his constitutional rights

were violated because he was denied adequate dental care. We affirm.

Mr. Howard is an inmate at the Howard McLeod Correctional Center

(“HMCC”) and under the custody of the Oklahoma Department of Corrections. 

He brought this § 1983 action against Dr. Randy Holland, a dentist at HMCC, and

Brandi Birchfield, the HMCC medical clinic supervisor, arguing that they had

violated his Eighth Amendment right to be free from cruel and unusual

punishment by failing to provide him with dentures.

Dr. Holland and Ms. Birchfield filed a motion to dismiss/motion for

summary judgment, in which they argued that Mr. Howard had failed to exhaust

his administrative remedies and that dismissal was therefore appropriate. They

also argued that Mr. Howard had failed to establish a claim for deliberate

indifference to his serious medical needs, and that they were entitled to qualified

immunity and Eleventh Amendment immunity.

The district court granted the defendants’ motion, finding that “[t]he record

shows that prior to commencing this lawsuit, plaintiff did not timely and properly

file an appeal to the proper individual concerning grievances filed for medical

reasons.” Op. & Order at 3, R. Vol. 1 at 124. While Mr. Howard argues that he

re-submitted his grievance appeal and did not receive any response, the district

court held that “the unauthorized re-submission cannot suffice to establish

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exhaustion of his administrative remedies.” Id. at 4. We agree with the district

court that the “record clearly shows plaintiff has failed to exhaust his

administrative remedies, as required by 42 U.S.C. § 1997e(a), and the deadlines

have passed for pursuing his administrative remedies under DOC policy.” Id.

For the foregoing reasons, the decision of the district court is AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge

Appellate Case: 10-7008 Document: 01018434664 Date Filed: 06/04/2010 Page: 3