McKeighan v. Corrections Corporation, 10th Cir. (2011)

FILED
United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALSNovember 8, 2011

FOR THE TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
JAMES A. MCKEIGHAN,
Plaintiff-Appellant,
v.
CORRECTIONS CORPORATION OF
AMERICA; MIKE SHUTE, United
States Marshals Office, in his
individual and official capacity;
FREDRICK LAWRENCE, previous
Warden, CCA-Leavenworth, in his
SHELDON RICHARDSON, current
Warden, CCA-Leavenworth, in his
ROBERT MUNDT, Assistant Warden,
CCA-Leavenworth, in his individual
and official capacity; KENNETH
DAUGHERTY, Chief of Unit
Management, CCA-Leavenworth, in
his individual and official capacity;
BRUCE ROBERTS, Chief of Security,
and official capacity; GEORGE
GREEN, Lieutenant,
and official capacity; MELANIE
FULTON, Commissary/Warehouse &
Laundry, CCA-Leavenworth, in her
individual and official capacity,
Defendants-Appellees.
No. 10-3286
(D.C. No. 5:08-CV-03173-SAC)
(D. Kan.)
ORDER AND JUDGMENT *
Before HARTZ, Circuit Judge, HOLLOWAY and PORFILIO, Senior Circuit

Judges.
James A. McKeighan, a federal prisoner at the United States Penitentiary in

Leavenworth, Kansas, appeals pro se the district courts grant of summary
judgment in favor of seven Corrections Corporation of America (CCA) employees
and former Deputy United States Marshal Mike Shute on Mr. McKeighans claims
that while he was a pretrial detainee at the CCA facility in Leavenworth, Kansas,
he was (1) denied outside recreation while housed in an overcrowded cell, in
violation of the Eighth Amendment; and (2) confined in segregation as
punishment for attempting to defend his criminal case, in violation of the First
Amendment. McKeighan v. Corrs. Corp. of Am., No. 08-3173-SAC, 2010 WL
3913227, at *1 (D. Kan. Sept. 30, 2010). 1 In granting the defendants motions for
summary judgment on these two claims, the district court found that there [wa]s
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
1
The district court had previously dismissed all of Mr. McKeighans other
claims, see McKeighan v. Corrs. Corp. of Am., No. 08-3173-SAC, 2010 WL
446503, *1 (D. Kan. Feb. 4, 2010), and he does not challenge the dismissal on
appeal.
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no material issue of fact regarding plaintiffs failure to exhaust administrative

remedies and his claims must be dismissed pursuant to 42 U.S.C. 1997e(a) for
failure to exhaust. McKeighan v. Corrs. Corp. of Am., 2010 WL 3913227, at
*18; see also id. at *18 n.28 (recognizing that dismissal of unexhausted claims
on summary judgment should be without prejudice). In the alternative, the
district court dismisse[d] plaintiffs claims, sua sponte, pursuant to 28 U.S.C.
1915(e)(2)(B)(ii) because plaintiff . . . failed to allege sufficient facts to state a
federal constitutional violation. McKeighan v. Corrs. Corp. of Am., 2010 WL
3913227, at *18. Mr. McKeighan appeals.
Our jurisdiction arises under 28 U.S.C. 1291. The parties are familiar
with the facts and procedural history of this case, the district court detailed both,
McKeighan, 2010 WL 3913227, at *1-*4, and we need not restate that material
here.
In Mr. McKeighans pro se appellate brief which, like his district court
filings, we afford a liberal construction, see Yang v. Archuleta, 525 F.3d 925,
927 n.1 (10th Cir. 2008), he arguesas best we can discernthat the district
court should have deemed his claims exhausted because the defendants
(1) forged [a] telephone grievance and sent a copy of it to the district court
judge, Aplt. Opening Br. at 3; (2) hindered the grievance procedure by purposely
holding onto the informal resolution form for the telephone grievance until after
the deadline for filing a response had passed, id. at 4; and (3) refused to give
-3-
him requested grievance forms, told him that his complaints were
non-grievable, and lost or never answered his submitted grievances, id. at 6.
Next, he directs our attention to inmate declarations he previously produced,
apparently to corroborate his allegation that the defendants interfered with his
attempts to exhaust his administrative remedies. See id. at 5. In this regard, he
also complains that case managers refused to notarize the inmate statements.
Id. He asserts that the defendants and the Defendants attorney . . . lied to the
district court judge about McKeighan not filing any overcrowding or no
exercise grievances. Id. at 7. Finally, he complains that the district court judge
is making him pay the full filing fee of $350, even though he . . . does not
meet the qualifications of the three strikes provision of the PLRA. Id. at 8. 2
We review de novo all aspects of the challenged district court decision.
See Nielson v. Ketchum, 640 F.3d 1117, 1121 (10th Cir. 2011) (We review
summary judgment decisions de novo, applying the same legal standard as the
As the district court in this case previously explained:

Pursuant to 28 U.S.C. 1915(b)(1), plaintiff is obligated to
pay the full $350.00 district court filing fee in this civil action.
Being granted leave to proceed in forma pauperis entitles him to pay
an initial partial filing fee and the remainder due over time through
payments deducted automatically from his inmate trust fund account
as authorized by 28 U.S.C. 1915(b)(2).
McKeighan v. Corrs. Corp. of Am., 2008 WL 3822892, at *1 n.4

(D. Kan. Aug. 13, 2008).
-4-
district court. (internal quotation marks omitted)); Thomas v. Parker, 609 F.3d
1114, 1117 (10th Cir. 2010), cert. denied, 131 S. Ct. 1691 (2011) (We review
de novo the district courts finding of failure to exhaust administrative remedies.
(internal quotation marks omitted)); Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir.
2007) (We review de novo the district courts decision to dismiss an IFP
complaint under 28 U.S.C. 1915(e)(2)(B)(ii) for failure to state a claim.).
We have carefully reviewed the record on appeal, the parties briefs, and
the applicable law, and we AFFIRM the judgment of the district court for
substantially the same reasons stated in its thorough September 30, 2010,
memorandum and order. We GRANT Mr. McKeighans motion for leave to
proceed on appeal without prepayment of costs or fees and remind him that he
must make partial payments until the entire appellate filing fee is paid in full.
Entered for the Court
William J. Holloway, Jr.

Senior Circuit Judge
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McKeighan v. Corrections Corporation, 10th Cir. (2011)

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FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALSNovember 8, 2011

ORDER AND JUDGMENT *

Before HARTZ, Circuit Judge, HOLLOWAY and PORFILIO, Senior Circuit

James A. McKeighan, a federal prisoner at the United States Penitentiary in

no material issue of fact regarding plaintiffs failure to exhaust administrative

As the district court in this case previously explained:

McKeighan v. Corrs. Corp. of Am., 2008 WL 3822892, at *1 n.4

Entered for the Court

William J. Holloway, Jr.

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