F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 24 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
EDWARD DWAYNE ASHFORD,
Plaintiff-Appellant,
v.
No. 01-1264
JOHN E. HAHN, Warden; R. E.
(D.C. No. 01-Z-375)
HOLTON, Associate Warden;
(D. Colo.)
E. HANSEN, Captain; ROBERT
WALKER, S.I.A.; and R. J.
ZAMPERELLI, Unit Manager,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before EBEL, KELLY and LUCERO, Circuit Judges.
Plaintiff-appellant Edward D. Ashford challenges the district court’s
dismissal of his complaint based on an alleged violation of his right of access to
the courts. The complaint alleged that, while Mr. Ashford was incarcerated at a
*
After examining appellant’s brief and the 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) and 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
federal prison, his legal papers were seized and he was placed in administrative
detention during a prison investigation. The deprivation of his legal papers
allegedly caused Mr. Ashford to miss a deadline for filing a second supplemental
petition for certiorari with the Maryland Court of Appeals. The district court
dismissed the complaint as legally frivolous.
Before the district court, Mr. Ashford filed a “Motion to Entertain
Complaint,” explaining why his exhaustion of the Bureau of Prisons’
administrative grievance procedure had been rendered impossible. The district
court, relying on Garrett v. Hawk, 127 F.3d 1263, 1267 (10th Cir. 1997), ruled
that the motion was unnecessary because the complaint sought only money
damages, which are unavailable through the prison grievance procedures. Garrett
has since been disapproved by the Supreme Court, which held that exhaustion is
required, regardless of the relief offered by the administrative procedures. Booth
v. Churner, 121 S. Ct. 1819, 1825 (2001). Before reaching the merits, it must be
determined whether Mr. Ashford has satisfied the exhaustion requirements.
Accordingly, the district court’s judgment is VACATED and this case is
REMANDED for further proceedings not inconsistent with this order. Mr.
Ashford’s motion to appeal in forma pauperis is GRANTED.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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