Appellate Case: 22-3285 Document: 010110823234 Date Filed: 03/08/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 8, 2023 _________________________________ Christopher M. Wolpert Clerk of Court ANTHONY S. KIDD,

Plaintiff - Appellant, No. 22-3285 v. (D.C. No. 5:22-CV-03123-JWL-JPO) (D. Kan.) JEREMY BAKER; TYLER JONES; MICHAEL FALCK; JASON VSETECKA; (FNU) SIMMONS; JOHN DOE,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before McHUGH, MURPHY, and CARSON, Circuit Judges. _________________________________

After examining Anthony Kidd’s written submissions and the 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.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 22-3285 Document: 010110823234 Date Filed: 03/08/2023 Page: 2

Kidd appeals, pro se, from an order of the district court dismissing his

42 U.S.C. § 1983 civil rights complaint.1 In that complaint, Kidd alleged corrections

officers at the Larned Correctional Mental Health Facility choked him and used

excessive force after he was handcuffed and restrained. The district court noted

Kidd’s action was properly dismissed on two independent grounds. First,

considering only the facts upon which the parties agreed, the district court concluded

Kidd’s complaint failed to state a claim. Alternatively, the district court concluded

Kidd failed to exhaust his administrative remedies as required by 42 U.S.C.

§ 1997e(a). In so doing, the district court described at length the dual-track system

of administrative exhaustion set out in Kansas law. The district court noted that

because Kidd’s claims involved allegations of personal injury, the relevant path to

exhaust his claims was that set out in Kan. Admin. Regs. § 44-16-104a. And, as the

district court correctly concluded, Kidd did not utilize the procedures set out in § 44-

16-104a. See R. Vol. I at 35 (grievance resolution from unit manager specifically

informing Kidd he could not utilize the grievance procedures set out in Article 15 of

Chapter 44 of the Kansas Administrative Regulations to exhaust his personal injury

claims); id at 40 (same as to warden).

This court reviews de novo a dismissal for failure to exhaust. Jernigan v.

Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). A review of Kidd’s appellate

1 Kidd’s motion to proceed on appeal in forma pauperis is granted. 28 U.S.C. § 1915. He is reminded that he must continue making partial payments until the appellate filing fee is paid in full. Id. § 1915(b)(1).

2 Appellate Case: 22-3285 Document: 010110823234 Date Filed: 03/08/2023 Page: 3

arguments, the record, and the pertinent authorities demonstrates the district court

correctly concluded Kidd’s complaint must be dismissed because Kidd failed to

properly exhaust his administrative remedies.2 See id. Accordingly, the district court

is affirmed for substantially those reasons relating to the issue of exhaustion set out

in the order of dismissal dated December 7, 2022. This court need not, and does not,

opine on the correctness of any aspect of the district court’s conclusion that Kidd’s

complaint failed to state a valid excessive force claim.

For those reasons set out above, the order of the United States District Court

for the District of Kansas is hereby AFFIRMED.

Entered for the Court

Michael R. Murphy Circuit Judge

2 A dismissal for failure to exhaust is usually without prejudice. Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1139 (10th Cir. 2005). In this case, however, the record indicates Kidd could not now file a timely administrative grievance. See Kan. Admin. Regs. § 44-16-104a(a) (setting out a ten-day timeframe for filing a claim of personal injury). Thus, allowing Kidd an attempt to properly exhaust his claims would be futile. See Thompson v. Coulter, 680 F. App’x 707, 712 (10th Cir. 2017) (unpublished disposition cited exclusively for its persuasive value). 3