FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 2, 2010
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JOSEPH FLORES,
Plaintiff - Appellant, No. 09-2240
v. (D. N.M.)
C/O M. DELEVARQUEZ; SGT (D.C. No. 2:07-CV-01306-RB-LAM)
CARRY,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before HARTZ, SEYMOUR, and EBEL, Circuit Judges.
On December 27, 2007, Joseph Flores filed a pro se complaint under
42 U.S.C. § 1983 against Defendants. He alleged that a correctional officer at the
Central New Mexico Correctional Facility (CNMCF), where he was incarcerated,
had entered his cell and pushed him backwards onto the concrete floor with a
malicious intent to cause unnecessary harm, in violation of his Eighth
*
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not binding precedent except under the doctrines of law of the case, res judicata,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.
Amendment rights. In addition, Mr. Flores has alleged that he was retaliated
against by being transferred to different facilities, having his property kept from
him, and having legal materials and court mail kept from him and delayed past
court time lines.
On September 8, 2008, the district court sua sponte dismissed Mr. Flores’s
claims against CNMCF–Wardens Security because the complaint contained no
allegations linking that defendant to the alleged constitutional violation. After
preparation of the court-ordered Martinez report, see Martinez v. Aaron, 570 F.2d
317 (10th Cir. 1978), defense counsel moved to dismiss the complaint against all
remaining defendants on the grounds that Mr. Flores had failed to exhaust
administrative remedies and had failed to state a claim on which relief can be
granted. The magistrate judge treated the motion as a motion for summary
judgment so that it could consider additional factual material required to resolve
the exhaustion issue. See Whitesel v. Sengenberger, 222 F.3d 861, 866 (10th Cir.
2000). The magistrate judge then recommended that the complaint be dismissed
for failure to exhaust administrative remedies. The district court rejected
Mr. Flores’s objections to the recommendation and dismissed the case without
prejudice. It denied Mr. Flores’s motion for leave to file an amended complaint
because the amendment would be futile.
On appeal Mr. Flores argues (1) that the district court erred in holding that
he had failed to exhaust all available administrative remedies and (2) that it erred
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in denying his motion to amend his complaint. 1 We have jurisdiction under
28 U.S.C. § 1291 and affirm.
The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), requires
that a prisoner exhaust administrative remedies before filing a § 1983 action with
respect to prison conditions. “An inmate who begins the grievance process but
does not complete it is barred from pursuing a [federal] claim under the PLRA for
failure to exhaust his administrative remedies.” Jernigan v. Stuchell, 304 F.3d
1030, 1032 (10th Cir. 2002).
The New Mexico Corrections Department requires an inmate to (1) file an
informal complaint within five days from the date of the incident, (2) file a formal
grievance using the Inmate Grievance Form within 20 days of the incident if the
informal complaint does not resolve the issue, and (3) appeal the Warden’s
decision to the Office of the Secretary of Corrections within seven days of
receiving the Warden’s decision. Mr. Flores alleges that he completed the first
step of the grievance procedure but was unable to pursue his administrative
remedies further because he was placed in segregation and was denied access to
1
Mr. Flores also argues that the district court erred in ruling that his
complaint was moot. But the district court did not hold that Mr. Flores’s
complaint was moot, and Defendants do not argue to the contrary. Hence, we
need not address this issue.
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grievance forms during the 20-day time period within which he had to file his
formal grievance. 2
The district court’s opinion persuasively explains the propriety of its
dismissal of Mr. Flores’s complaint and its denial of his motion to amend. We
therefore AFFIRM the judgment below. We GRANT Mr. Flores’s motion to
proceed in forma pauperis on appeal. We remind him of his obligation to
continue making partial payments until the entire filing fee has been paid.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
2
On appeal Mr. Flores for the first time contends that he was in segregation
for all of the 20-day period. We will not consider an issue that was not raised
before the district court. See Walker v. Mather (In re Walker), 959 F.2d 894, 896
(10th Cir. 1992).
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