F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 24, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
GEORGE E. FLORENCE,
Plaintiff-Appellant,
v.
T. VELASQUEZ; GILBERT LYDE; No. 05-1359
A. BERRIOS; M. CUNDOFF; H. A. (District of Colorado)
RIOS, JR.; G. L. HERSHBERGER; (D.C. No. 05-CV-00651-ZLW)
HARRELL WATTS; A. JOHNSON; D
THARP; GOMEZ; H. MARSHALL,
individual capacity; SORINTE,
individual capacity,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before MURPHY, SEYMOUR and McCONNELL, Circuit Judges.
After examining appellant’s brief and the appellate record, this court has
determined unanimously that oral argument would not materially assist the
*
This order and judgment is not binding precedent, except under the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.
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.
Proceeding pro se, federal prisoner George E. Florence appeals the district
court’s dismissal of the civil rights complaint he brought pursuant to Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Florence’s complaint contained several claims against numerous defendants, many
relating to an incident in which he injured his back while performing his prison
food-service job and some relating to other aspects of his incarceration.
Specifically, Florence alleged violations of his First, Fifth, Eighth, and Ninth
Amendment rights and further alleged prison officials retaliated against him for
asserting his constitutional rights.
Florence was ordered to file an amended complaint that complied with the
pleading requirements of Rule 8 of the Federal Rules of Civil Procedure and to
show cause why his complaint should not be dismissed for failure to exhaust his
administrative remedies. In response to the order, Florence submitted an amended
complaint and copies of documents relating to a grievance he initiated on May 2,
2004. The district court concluded, however, that the amended complaint was
deficient and the documentation Florence provided did not relate to the claims
raised in his complaint. The documents, instead, related to a job reassignment
that occurred before Florence was injured while performing his food-service job.
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The court dismissed the action without prejudice for failure to comply with Rule 8
and for failure to exhaust administrative remedies.
This court reviews a dismissal for failure to exhaust de novo . See Miller v.
Menghini , 213 F.3d 1244, 1246 (10th Cir. 2000). On appeal, Florence does not
make any reasoned argument that he exhausted any of the claims raised in his
amended complaint and our review of the record confirms that the documentation
submitted by Florence does not relate to those claims. Accordingly, the record is
devoid of any indication Florence exhausted his administrative remedies. See
Ross v. County of Bernalillo, 365 F.3d 1181, 1190 (10th Cir. 2004) (“If a prisoner
does submit a complaint containing one or more unexhausted claims, the district
court ordinarily must dismiss the entire action without prejudice.”).
We conclude the district court did not err when it dismissed Florence’s
complaint without prejudice for failure to exhaust administrative remedies and
affirm the district court’s order. 1
See id . This conclusion obviates the need to
address whether the district court properly determined Florence’s complaint
1
In a document titled, Motion For Rehearing or Modifying Its Order Dated
September 2, 2005 in Order to Address Complained of First Amendment
Violation, Florence asserts his First Amendment rights have been violated
because FCI-Florence has been deducting postage and copy costs from his inmate
trust fund account. This claim was not presented to the district court and this
court does not consider claims raised for the first time on appeal. See Steele v.
Federal Bureau of Prisons, 355 F.3d 1204, 1213 n.5 (10th Cir. 2003).
Accordingly, Florence’s motion is denied.
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failed to satisfy Rule 8 of the Federal Rules of Civil Procedure. Florence’s
application to proceed in forma pauperis on appeal is granted , but he is
reminded that he remains obligated to continue making partial payments until his
appellate filing fee is paid in full. See 28 U.S.C. § 1915(b).
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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