Kimmet Lance Rinard v. TIM LUOMA , Warden

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0090p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
KIMMET LANCE RINARD ,
Plaintiff-Appellant,
v.
TIM LUOMA , Warden, et al.,
Defendants-Appellees.
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No. 05-1150
Appeal from the United States District Court
for the Western District of Michigan at Marquette.
No. 04-00231—Gordon J. Quist, District Judge.
Submitted: March 7, 2006
Decided and Filed: March 13, 2006
Before: SILER, BATCHELDER, and GIBBONS, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Kimmet Lance Rinard, Marquette, Michigan, pro se.
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OPINION
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ALICE M. BATCHELDER, Circuit Judge. Kimmet Rinard (“Rinard”), a Michigan state
prisoner, appeals pro se a district court order dismissing without prejudice his civil rights action,
filed pursuant to 42 U.S.C. § 1983, for failure to exhaust his administrative remedies. Rinard filed
a complaint against eight employees of the Michigan Department of Corrections, alleging that the
defendants had confiscated from his cell and refused to permit him to receive all books he ordered,
in violation of his right to practice his religion. Rinard alleges that he worships Greek gods and
goddesses, but the defendants have determined that he may not have materials depicting naked boys
because he is incarcerated for criminal sexual conduct with boys under the age of thirteen.
The district court dismissed Rinard’s complaint pursuant to 42 U.S.C. § 1997e(a) (“PLRA”),
because Rinard had exhausted his administrative remedies with regard to only four of the eight
named defendants. On appeal, Rinard concedes that he has not exhausted his remedies against four
of the defendants, but argues that he should be able to amend his complaint to delete these
defendants. Because this Court has ruled definitively that complaints that contain both exhausted
and non-exhausted claims must be dismissed, we affirm. See Jones Bey v. Johnson, 407 F.3d 801,
807 (6th Cir. 2005).
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No. 05-1150 Rinard v. Luoma, et al. Page 2
I.
We review de novo the district court’s dismissal of a PLRA case for failure to exhaust
administrative remedies. Curry v. Scott, 249 F.3d 493, 503 (6th Cir. 2001).
Rinard relies on Wilson v. Zak, an unpublished opinion from the Eastern District of
Michigan, in arguing that the district court should have followed our decision in Hartsfield v. Vidor,
199 F.3d 305 (6th Cir. 1999), which had dismissed the unexhausted claims, but allowed the
exhausted claims to proceed. In Hartsfield, we addressed the exhausted claims and dismissed
without prejudice the unexhausted claims. Id. at 309. But the defendants in Hartsfield did not raise
on appeal the total/partial exhaustion question, and we did not address it. After Hartsfield, both this
court and the lower courts continued to split on whether the PLRA requires total exhaustion in cases
involving “mixed” complaints. See Hubbard v. Thakur, 344 F.Supp.2d 549, 558-59 (E.D. Mich.
2004) (rejecting total exhaustion rule); Alexander v. Davis, 282 F.Supp.2d 609, 610 (W.D. Mich.
2003) (rejecting total exhaustion rule); Chamberlain v. Overton, 326 F.Supp.2d 811, 816 (E.D.
Mich. 2004) (applying total exhaustion rule); Smeltzer v. Hook, 235 F.Supp.2d 736, 739-40 (W.D.
Mich. 2002) (applying total exhaustion rule).
In Jones Bey v. Johnson, we addressed and “definitively answer[ed] . . . whether the PLRA
requires a complete dismissal of a prisoner’s complaint when that prisoner alleges both exhausted
and unexhausted claims.” 407 F.3d at 805 (6th Cir. 2005). There, expressly joining the Eighth and
Tenth Circuits, id. at 806, we held that the PLRA requires total exhaustion, and that exhaustion is
“mandatory, even if proceeding through the administrative system would be ‘futile.’” Id. at 805.
We explained that we were adopting the total exhaustion rule “in large part, because the plain
language of the statute dictates such a result.” Id. at 807. The statute states: “No action shall be
brought with respect to prison conditions under section 1983 of this title, or any other Federal law,
by a prisoner confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
Even after Jones Bey, some confusion may have lingered as to this court’s reading of the
PLRA’s exhaustion requirement in light of our decision in Hartsfield. Today we make clear that
we continue to subscribe to the long-held standard that “[q]uestions which merely lurk in the record,
neither brought to the attention of the court nor ruled upon, are not to be considered as having been
so decided as to constitute precedents.” Nemir v. Mitsubishi Motors Corp., 381 F.3d 540, 559 (6th
Cir. 2004) (quoting Webster v. Fall, 266 U.S. 507, 511 (1925)). Thus, although the total/partial
exhaustion question lurked amid the record in Hartsfield, that case did not address nor decide the
issue so as to be binding upon this court. By contrast, Jones Bey definitively answered the question
presented here and we now follow it.
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.

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