F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 9 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ADAM DMYTRYSZYN,
Plaintiff-Appellant,
v. No. 98-1052
(D.C. No. 97-D-2225)
BOB HICKOX; ARISTEDES W. (D. Colo.)
ZAVARAS; ROY ROMER, Governor,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before ANDERSON , KELLY , and LUCERO , Circuit Judges.
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This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff appeals the district court’s sua sponte dismissal of his 42 U.S.C.
§ 1983 action as frivolous. See 28 U.S.C. § 1915(e)(2)(B) (Supp. 1998). We
affirm, but for reasons other than those relied upon by the district court. See,
e.g. , United States v. Myers , 106 F.3d 936, 941 (10th Cir. 1997) (appellate court
is free to affirm for any reason supported by record).
The Prisoner Litigation Reform Act (PLRA) provides that “a prisoner
confined in any jail, prison, or other correctional facility” may not bring an
“action . . . with respect to prison conditions under section 1983 . . .” if he has not
first exhausted his administrative remedies. 42 U.S.C. § 1997e(a) (Supp. 1998);
see Garrett v. Hawk , 127 F.3d 1263, 1265 (10th Cir. 1997). This exhaustion
requirement applies to plaintiff’s claim challenging the amount of compensation
he received for work performed outside the prison. Cf. 18 U.S.C. § 3626(g)
(Supp. 1998) (defining, in another section of PLRA, “‘civil action with respect to
prison conditions’” to mean “any civil proceeding arising under Federal law with
respect to the conditions of confinement or the effects of actions by government
officials on the lives of persons confined in prison”). See generally People v.
Miller , 747 P.2d 12, 14 (Colo. Ct. App. 1987) (under Colorado law, inmate
remains “under confinement” despite non-resident status in community
corrections facility and including work release).
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In his complaint, plaintiff acknowledged that he had not exhausted his
administrative remedies, making only conclusory allegations that pursuit of such
remedies might be futile. See Brown v. Toombs , 139 F.3d 1102, 1104 (6th Cir.)
(prisoner must allege and show he has exhausted all available administrative
remedies), cert. denied , 119 S. Ct. 88 (1998). Those allegations are insufficient
to excuse plaintiff’s failure to exhaust. See, e.g. , Wendell v. Asher , 162 F.3d
887, 892 (5th Cir. 1998).
We therefore, AFFIRM the district court’s dismissal of plaintiff’s § 1983
cause of action, but we REMAND to the district court to dismiss specifically
without prejudice. See Brown , 139 F.3d at 1104.
The mandate shall issue forthwith.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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