UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

MARIO WILLIAMS,

 Plaintiff - Appellant,

v.

ROBERT EZELL, Warden; MARTIN, 

Assistant Warden; SGT. ROBINSON; 

C/M BARLOW,

 Defendants - Appellees.

No. 14-7085 

(E.D. Oklahoma)

(D.C. No. 6:11-CV-00195-JHP-SPS )

ORDER AND JUDGMENT*

Before, HARTZ, TYMKOVICH, and MORITZ, Circuit Judges. 

 

Plaintiff Mario Williams, a prisoner in the custody of the Oklahoma Department 

of Corrections (DOC), is before us on his second appeal from dismissal of his suit under 

 

*

 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). This 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 This order and judgment is not binding precedent, except under 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 30, 2015

Elisabeth A. Shumaker 

Clerk of Court

Appellate Case: 14-7085 Document: 01019452750 Date Filed: 06/30/2015 Page: 1 
2 

42 U.S.C. § 1983 against employees of the Corrections Corporation of America (CCA) 

and the DOC. We have jurisdiction under 28 U.S.C. § 1291 and must reverse and 

remand again. 

On Mr. Williams’s first appeal we affirmed the summary judgment against him 

granted by the United States District Court for the Eastern District of Oklahoma, except 

for claims arising out of events that took place in February 2011. See Williams v. Ezell, 

534 F. App’x 699, 700 (10th Cir. 2013). On remand the district court dismissed the 

remaining claims. But we are unable to determine on what ground the court resolved the 

concerns expressed by our opinion on the first appeal. 

Mr. Williams’s original complaint “allege[d] that on February 11, 2011, the CCA 

Defendants placed him in a cell with a Satan-worshiping prisoner who refused to let him 

have the bottom bunk (which he needed for medical reasons), and that when he 

complained about his placement, he was sent to a segregation cell where he was deprived 

of his property and showers and got headaches from the 24–hour lights.” Id. at 701. 

Defendants filed a Martinez report, see Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir. 

1978), and motions to dismiss or for summary judgment. The district court dismissed the 

claim against the DOC employee on the merits and dismissed the other claims because 

Mr. Williams had not exhausted his prison administrative remedies for his claims. 

Mr. Williams argued on appeal “that the district court [had] failed to consider 

additional grievance forms that he presented to the court” and “that these forms 

demonstrate[d] that administrative remedies were unavailable to him because CCA staff 

Appellate Case: 14-7085 Document: 01019452750 Date Filed: 06/30/2015 Page: 2 
3 

thwarted his exhaustion efforts.” Williams, 534 F. App’x at 702. We agreed with the 

district court in large part but said that “the documents appear[ed] adequate with respect 

to [his] February 2011 claims.” Id. “They indicate[d] that he was unable to submit a 

grievance on those claims because he received no responses to his attempts to pursue the 

prerequisite informal resolution.” Id. at 702–03. We rejected Defendants’ argument that 

he had “provided no evidence to the District Court showing that the additional documents 

were ever actually submitted or received by the Grievance Coordinator,” because our 

inspection of the record revealed that “the documents were attached to his declaration of 

December 7, 2011, stating that he [had] submitted the documents.” Id. at 703 (brackets 

and internal quotation marks omitted). And we were unpersuaded by Defendants’ 

“assert[ion] that to properly exhaust, [Mr. Williams] had to file a grievance complaining 

about Defendants’ unresponsiveness to his grievances,” because “they [had] not cite[d] 

any CCA grievance policy to that effect and they [had] not explain[ed] why [his] 

documents [were] not adequate in that regard.” Id. We reversed and remanded for 

further proceedings on the February 2011 claims. 

Following remand, Mr. Williams filed an amended complaint to reassert the 

February 2011 claims and to include “only the defendants that were connected to [those] 

claims.” Aplt. Br. at 1. Defendants filed another Martinez report and a motion to 

dismiss. The report noted Mr. Williams’s declaration and the documents on which we 

relied in his first appeal. See Report of Review of Factual Basis of Claims Asserted in 

Civil Rights Compl. Pursuant to 42 U.S.C. Section 1983 at 15–16, Williams v. Ezell, 

Appellate Case: 14-7085 Document: 01019452750 Date Filed: 06/30/2015 Page: 3 
4 

No. CIV-11-195-JHP-SPS (E.D. Okla. Jan. 10, 2014). But there is no mention of them in 

the later discussion under the heading “Williams’ Exhaustion efforts,” id. at 18; see id. at 

18–20; nor are they mentioned in the motion to dismiss and supporting brief. 

Nevertheless, the district court dismissed the remaining claims for failure to 

exhaust, without referring to Mr. Williams’s declaration or attached documents. Without 

an explanation of why the documents are irrelevant, we are unable to properly review the 

court’s dismissal order. 

Defendants’ answer brief in our court could be read as arguing that we should 

affirm because Mr. Williams’s amended complaint did not allege exhaustion. But lack of 

exhaustion is an affirmative defense that must be raised by the defendant. See Jones v. 

Bock, 549 U.S. 199, 216 (2007). 

We REVERSE and REMAND for further proceedings. We also REVERSE the 

strike that was imposed by the district court. We AFFIRM the district court’s denial of 

Mr. Williams’s motion to hold Defendants in contempt. 

ENTERED FOR THE COURT 

 Harris L Hartz 

Circuit Judge 

Appellate Case: 14-7085 Document: 01019452750 Date Filed: 06/30/2015 Page: 4