Boulden v. Tafoya , 37 F. App'x 974 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
JUN 21 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
DONALD A. BOULDEN,
Plaintiff - Appellant,
v. No. 02-2024
(No. CIV-01-353-KBM)
LAWRENCE TAFOYA, Warden; PAT (D. New Mexico)
SNEDEKER, Assistant Warden;
STEVE RICHARDS; ROBERT
MIERA,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before EBEL , LUCERO , and O’BRIEN , Circuit Judges.
Donald A. Boulden, a New Mexico state prisoner, appeals the federal
magistrate judge’s dismissal without prejudice of his 42 U.S.C. § 1983 claim for
The case is unanimously ordered submitted without oral argument pursuant
*
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
failure to exhaust available administrative remedies. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm.
In March 1999, Boulden was transferred by the New Mexico Department of
Corrections to a facility near Las Cruces, New Mexico, where he was placed in
the general prison population. On the evening of the transfer, he alleges he was
assaulted while in his bunk by several inmates. Boulden was provided medical
treatment and transferred again, first to a correctional facility in Los Lunas and
then to one in Grants, New Mexico. While at Los Lunas, Boulden filed a
grievance claiming that he was being denied adequate medical care. This
grievance was denied, however, due to his transfer to the Grants facility.
In March 2001, Boulden filed a “Complaint for Money Damages for
Violation of Civil Rights” in the district court, alleging violations under § 1983
and the Eighth and Fourteenth Amendments to the United States Constitution
arising from prison officials’ failure to protect him from the abuse of the other
inmates. The parties agreed to have a magistrate judge preside over the action
and enter final judgment. After the magistrate addressed scheduling and
discovery matters, and held a pair of settlement conferences, defendants raised for
the first time the issue of Boulden’s exhaustion of his administrative remedies.
The magistrate initially stayed the proceedings to allow Boulden to file an
appropriate grievance, but upon reviewing defendants’ motion for reconsideration
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of the stay the magistrate determined that dismissal of the action without
prejudice was mandatory. Boulden timely appealed the dismissal to this Court.
We review de novo a dismissal for failure to exhaust administrative
remedies. Miller v. Menghini , 213 F.3d 1244, 1246 (10th Cir. 2000), overruled
on other grounds by Booth v. Churner , 532 U.S. 731 (2001). Pursuant to the
Prison Litigation Reform Act of 1995, prisoners bringing § 1983 claims must
exhaust available administrative remedies before proceeding in federal court. See
42 U.S.C. § 1997(e)(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 provision requires full
exhaustion of the available formal grievance procedure, regardless of the nature
of the relief being sought. Booth, 532 U.S. at 741.
Boulden does not claim ever to have filed a grievance alleging a failure to
protect. Indeed, the only grievance documented in the record is the allegation of
inadequate medical treatment that he filed while at the Los Lunas facility. We
thus agree with the magistrate that Boulden has failed to document his exhaustion
of available administrative remedies. We also conclude that Boulden’s contention
that he need not exhaust because money damages are unavailable as an
administrative remedy is foreclosed by Booth.
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The district court’s dismissal without prejudice of Boulden’s action is
AFFIRMED .
The mandate shall issue forthwith.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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