Harrison v. Bent County ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 11 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
THURMAN HARRISON, JR.,
Plaintiff-Appellant,
v. No. 00-1154
BENT COUNTY CORRECTIONAL (D.C. No. 00-Z-300)
FACILITY; CHARLES RAY, Warden; (D. Colo.)
STEVEN L. BROWN, JR., Assistant
Warden; MICHAEL R. WISE, Chief of
Security; GALE MILLER, Mailroom
Supervisor; SUSAN BAKER, Law
Librarian,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before BALDOCK, HENRY, and LUCERO, Circuit Judges.**
Plaintiff Thurman Harrison, Jr., proceeding pro se, appeals the district court’s
*
This order and judgment is not binding precedent, except under the doctrines of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.
**
After examining the briefs and appellate record, this panel has determined that
oral argument would not materially assist the determination of this appeal. See Fed. R.
App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument.
dismissal without prejudice of his prisoner’s civil rights complaint pursuant to 42 U.S.C.
§ 1983 for failure to exhaust administrative remedies. We exercise jurisdiction pursuant
to 28 U.S.C. § 1291, and affirm.
Plaintiff is incarcerated at the Bent County Correctional Facility in Las Animas,
Colorado. The correctional facility’s policy regarding postage and photocopying provides
that “offenders whose accounts are $300.00 or more in arrears may have
photocopy/postage privileges restricted. . . . [O]nce an offender’s account is $300.00 or
more in arrears facilities may limit the offender’s outgoing legal mail to a maximum of
$2.00 per month.” Plaintiff filed a motion for a temporary injunction and a complaint
alleging this policy violates his constitutional right of access to the courts. The district
court denied injunctive relief and dismissed Plaintiff’s complaint without prejudice for
failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a). We review a
dismissal for failure to exhaust de novo. See Miller v. Menghini, 213 F.3d 1244, 1246
(10th Cir. 2000).
Pursuant to 42 U.S.C. § 1997e(a), “[n]o action shall be brought with respect to
prison conditions under section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” This exhaustion requirement is mandatory. See
Garrett v. Hawk, 127 F.3d 1263, 1265 (10th Cir. 1997); See also Brown v. Toombs, 139
F.3d 1102, 1104 (6th Cir. 1998) (remanding to the district court for dismissal without
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prejudice where prisoner brought a § 1983 action including claims of denial of access to
the courts and interference with legal mail but failed to exhaust available administrative
remedies). The Colorado Department of Corrections has a formal grievance procedure in
place that is available to all inmates. Therefore, Plaintiff must fully exhaust the available
administrative remedies before initiating an action in federal court. Accordingly, the
decision of the district court is AFFIRMED. Appellant’s motion for leave to proceed on
appeal without prepayment of costs and fees is granted. Appellant remains obligated to
pay the fee when funds are available.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
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