F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 7 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
ROBERT WAYNE HAMBY,
Plaintiff - Appellant,
v. No. 02-6253
D.C. No. CIV-01-620-L
LENORA JORDAN, Warden JCCC; (W.D. Oklahoma)
WACKENHUT CORRECTIONAL
FACILITY, Warden; and JAMES L.
SAFFLE, Director OK DOC,
Defendants - Appellees.
ORDER AND JUDGMENT
Before EBEL , HENRY , and HARTZ , 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 submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, or
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 Robert Wayne Hamby , an Oklahoma state inmate appearing pro se,
brought this 42 U.S.C. § 1983 action against various prison officials, alleging that
those officials (1) violated the Eighth Amendment by failing to protect him from
attacks by other inmates and (2) violated his due process rights by arbitrarily
taking away 832 of his earned credits. The magistrate judge recommended
dismissing the complaint without prejudice based on Plaintiff’s failure to exhaust
his administrative remedies. The district court adopted that recommendation and
dismissed the action without prejudice, but ordered the Department of Corrections
to permit Plaintiff to file an administrative grievance out-of-time, and further
ordered Plaintiff to submit that grievance within 30 days. Plaintiff then filed this
appeal.
“We review de novo the district court’s finding of failure to exhaust
administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.
2002). The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), requires
a prisoner to exhaust “available” administrative remedies before filing an action
with respect to prison conditions under § 1983. Jernigan, 304 F.3d at 1032. “An
inmate who begins the grievance process but does not complete it is barred from
pursuing a § 1983 claim under PLRA for failure to exhaust his administrative
remedies.” Id.
Apparently, Plaintiff does not dispute that he has not exhausted those
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remedies, but argues that he should not be required to exhaust because (1)
exhaustion would be futile since the time for filing his grievance had expired; (2)
he does not believe that prison officials will effectively assist him during the
grievance process; and (3) his case involves an “emergency situation” which must
be addressed as soon as possible.
We disagree. The Supreme Court has declined to read “futility or other
exceptions” into the PLRA’s exhaustion requirement. See Booth v. Churner, 532
U.S. 731, 741 & n.6 (2001). “Congress ha[s] eliminated both discretion to
dispense with administrative exhaustion and the condition that it be ‘plain,
speedy, and effective.’” Jernigan, 304 F.3d at 1032 (quoting Booth, 532 U.S. at
739). Moreover, Plaintiff “may not successfully argue that he had exhausted his
administrative remedies by, in essence, failing to employ them and since he may
now be time barred from pursuing them, they are exhausted by default.” Id. at
1033. This proposition has particular force where, as here, the district court
granted extra time to pursue administrative remedies. Finally, we note that the
Department of Corrections’ grievance policy provides for an emergency grievance
procedure.
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Accordingly, for substantially the same reasons set forth in the magistrate
judge’s recommendation dated April 30, 2002, and the district court’s order dated
July 29, 2002, we AFFIRM the judgment of the district court.
Entered for the Court
Harris L Hartz
Circuit Judge
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