F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 30, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
N ICHO LA S R . B OY D ,
Petitioner-A ppellant, No. 05-1543
v. (D . of Colo.)
JOHN D. FERGUSON, RICHARD (D.C. No. 05-ZLW -1286 (BNB))
HEA D (true name unknown), JAM ES
KEITH , DONICE NEA L, LISA
PALOM INO, and JEANNE M .
SM ITH ,
Respondents-Appellees.
OR D ER AND JUDGM ENT *
Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges. **
Petitioner-Appellant Nicholas R. Boyd claims he was subjected to unlawful
prison conditions in violation of 42 U.S.C. § 1983. Boyd appeals the district
court’s dismissal of his complaint. Because we agree with the district court that
*
This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Boyd’s complaint should be dismissed for failure to exhaust administrative
remedies, we AFFIRM .
I.
Boyd asserts five claims arising from his incarceration at the Correctional
Center in Rifle, Colorado: (1) retaliation by prison officials resulting in transfer
to another prison facility and delayed expungement of a prison disciplinary
conviction; (2) an unlawful 5:00 a.m. headcount policy; (3) an unwarranted
disciplinary conviction for unauthorized possession of another inmate’s legal
work; (4) inadequate food and canteen services; and (5) mail policies at the
federal immigration jail that prevent him mail contact with other prisoners at the
facility.
The Prison Litigation Reform Act (PLRA) requires prisoners to timely and
completely exhaust available administrative remedies before filing suit under 42
U.S.C. § 1983 concerning prison conditions. See 42 U.S.C. § 1997e(a); Booth v.
Churner, 532 U.S. 731, 741 (2001); Jernigan v. Stuchell, 304 F.3d 1030, 1032
(10th Cir. 2002). In a § 1983 action, the burden is on the prisoner to sufficiently
plead exhaustion, which includes supplying supporting documentation of
exhaustion, or in its absence, describing with specificity prison grievance
proceedings. Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1209–10 (10th Cir.
2003). Finding these requirements had not been met with respect to claims one
and four, the district court dismissed Boyd’s complaint without prejudice pursuant
-2-
to 42 U.S.C. § 1997e(a). The court also denied M r. Boyd’s motion for
reconsideration.
Since Boyd appears pro se, we must construe the complaint liberally. See
Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). W e review a district court’s decision regarding exhaustion
de novo. Jernigan, 304 F.3d at 1032.
II.
Boyd argues that the district court incorrectly found he had not exhausted
administrative remedies with regard to his first and fourth claims. First, he
asserts that he did exhaust his claim of retaliation by delayed expungement as
shown by the fact that (1) he was granted relief on this claim after he filed his
Step I and II grievances, and, in any case, (2) the prison staff denied him a Step
III grievance form on the ground that such relief was improper for a classification
grievance. Although in the abstract this allegation might be sufficient to comply
with § 1997e, Boyd’s allegation is unsupported by the record. Boyd did not file
any grievances concerning retaliation by delayed expungement to the prison
officials, but only delayed expungement. It was this grievance that was addressed
and granted, not the retaliation claim. Put another way, prison officials never had
the opportunity to address the retaliation claim. See Order at 4 (noting that Boyd
“fails to explain why he did not complete the grievance procedure with respect to
his claim that prison officials retaliated against him by delaying expungement of a
-3-
prison disciplinary conviction. That portion of M r. Boyd’s retaliation claim is
unrelated to the classification issue and could have been raised in the grievance
procedure.”).
Nor did Boyd resolve his claim relating to inadequate food and canteen
services. Again, Boyd argues he did exhaust, in that a prison-wide memo was
circulated which (1) granted relief, and (2) suspended any future grievances for
six months. Prison policy allows a prisoner who is granted relief through a
general response to file a Step III grievance if he remains unsatisfied with the
result. Although the record is unclear, the better interpretation of the prison’s
response is that the suspension of future grievances applied only to new
complaints regarding the prison’s food and canteen services, not to a Step III
grievance objecting to the general response. Boyd did not attempt to file a Step
III grievance, but only new grievances, i.e., Step I grievances, which fell within
the scope of the suspension.
In short, our independent review of the record reveals that Boyd’s
complaint does not make the particularized allegations required to show
exhaustion as to claims one and four. See Steele, 355 F.3d at 1211 (stating that
an action must be dismissed under § 1997e where particularized averments
concerning exhaustion are absent). Boyd’s remaining claims w ere also properly
dismissed under the total exhaustion rule. The “PLRA contains a total exhaustion
requirement . . . [such] that the presence of unexhausted claims . . . require[s] the
-4-
district court to dismiss [the] action in its entirety without prejudice.” Ross v.
County of Bernalillo, 365 F.3d 1181, 1189 (10th Cir. 2004); see 42 U.S.C.
§ 1997e(a) (stating “[n]o action shall be brought with respect to prison conditions
under section 1983 . . . by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are
exhausted”). Because Boyd did not completely exhaust administrative remedies
for all of his claims, § 1997e(a) requires his complaint to be dismissed.
A ccordingly, for the reasons stated above, we AFFIRM. W e further DENY
Boyd’s motion to proceed in forma pauperis.
Entered for the Court
Timothy M . Tymkovich
Circuit Judge
-5-