Boulden v. Tafoya, (10th Cir. 2002)

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UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DONALD A. BOULDEN,

Plaintiff - Appellant,

v.

LAWRENCE TAFOYA, Warden; PAT

SNEDEKER, Assistant Warden;

STEVE RICHARDS; ROBERT

MIERA,

Defendants - Appellees.

No.
name="1">02-2024

(No. CIV-01-353-KBM)

(D. New Mexico)

ORDER AND JUDGMENT
name="txt*">(*)

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

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

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) ("No 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.

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

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. 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.

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