F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 13, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
RICHARD OTTO HANSEN,
Plaintiff-Appellant,
v. No. 06-1292
FEDERAL BUREAU OF PRISONS, A. (D.C. No. 06-cv-00476-BNB)
JOLLY, J. BLANK, D. NELSON, and M. (D. Colo.)
SIMMONS,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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.
Plaintiff Richard Hansen, a federal prison appearing pro se, appeals from the
district court’s dismissal without prejudice of his civil rights complaint. We exercise
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th Cir. R.
32.1 (eff. Jan. 1, 2007).
jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
On March 16, 2006, Hansen filed a civil rights complaint against the Federal
Bureau of Prisons and four prison officials under Bivens v. Six Unknown Named Agents
of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). In his complaint, Hansen alleged that
the individual defendants had refused to accept delivery of various legal materials that
were sent to him by a family member. Hansen further alleged that these materials related
to several pending lawsuits that he had filed. Hansen requested compensatory and
punitive damages, declaratory relief, and injunctive relief directing defendants to retake
possession of the legal materials and, at their own expense, have them delivered to
Hansen.
On May 25, 2006, the magistrate judge assigned to the case issued an order
directing Hansen to file an amended complaint within thirty days. In doing so, the
magistrate judge concluded that (a) the Bureau of Prisons was not a proper defendant in a
Bivens action, (b) Hansen had failed to include factual allegations in his complaint
demonstrating each of the individual defendant’s personal participation in the alleged
constitutional violations, (c) there was no indication in Hansen’s complaint that he had
exhausted the Bureau of Prison’s administrative grievance procedure with respect to the
allegations set forth in his complaint, and (d) Hansen had failed to provide the district
court with sufficient copies of his complaint to serve each of the named defendants.
Accordingly, the magistrate judge directed Hansen that his amended complaint should
address each of these deficiencies, and placed Hansen on notice that if he failed to take
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the action required his case would be dismissed.
Rather than complying with the magistrate judge’s directive, Hansen filed on June
15, 2006, a purported notice of appeal from the magistrate judge’s order. On July 10,
2006, the district court issued an order dismissing the action without prejudice due to
Hansen’s failure to comply with the magistrate judge’s order. On July 18, 2006, Hansen
filed a notice of appeal from the district court’s order of dismissal.
Reviewing the district court’s order de novo, see Jernigan v. Stuchell, 304 F.3d
1030, 1032 (10th Cir. 2002), we conclude the district court properly dismissed Hansen’s
action without prejudice. It is well established that a plaintiff seeking to assert a Bivens
claim must first exhaust all available administrative remedies. E.g., Yousef v. Reno, 254
F.3d 1214, 1216 n.1 (10th Cir. 2001). A complaint “that fails to allege the requisite
exhaustion of remedies is tantamount to one that fails to state a claim upon which relief
may be granted.” Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1210 (10th Cir. 2003)
(internal quotation marks omitted). An inmate must not only adequately plead
exhaustion, but must also attach copies of the “applicable administrative dispositions to
the complaint.” Id. (internal quotation marks omitted). Here, Hanson failed to fulfill
either of these requirements, and indeed failed to respond at all to the magistrate judge’s
show cause order.
Although Hansen now contends that the exhaustion requirement was effectively
satisfied because prison officials previously indicated that Hansen would be allowed to
receive his legal materials, we disagree. According to the record on appeal, that
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concession was allegedly made in the context of a prior legal proceeding filed by Hansen
after he was released from a Nebraska state prison and placed into federal custody.
Assuming, for purposes of argument, that such a concession was made, it does not
address the specific circumstances alleged in Hansen’s complaint, i.e., the alleged refusal
of specific prison officials to accept delivery of the legal materials. We have previously
noted that “[d]eveloping the factual record through administrative review is particularly
important in pro se prison litigation, where exhaustion serves the same purpose and is
very similar to discovery in ordinary litigation.” Simmat v. U.S. Bureau of Prisons, 413
F.3d 1225, 1238 (10th Cir. 2005) (internal quotation marks omitted). That principle
clearly applies here, where the precise facts underlying Hansen’s complaint remain
undeveloped. Accordingly, we conclude that Hansen must exhaust all available
administrative remedies before pursuing his Bivens action.
AFFIRMED. Hansen’s motion to pay the appellate filing fee in partial payments
is DENIED and Hansen is ordered to make immediate payment of the unpaid balance
due.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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