This order is not binding precedent, except under the doctrines of law of *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.

F I LED

United States Court of Appeals

Tenth Circuit

June 30, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

NICHOLAS R. BOYD,

Petitioner-Appellant, No. 05-1543

v. (D. of Colo.)

JOHN D. FERGUSON, RICHARD

HEAD (true name unknown), JAMES

KEITH, DONICE NEAL, LISA

PALOMINO, and JEANNE M.

SMITH,

Respondents-Appellees.

(D.C. No. 05-ZLW-1286 (BNB))

ORDER AND JUDGMENT

*

Before HARTZ, EBEL, and TYMKOVICH, 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
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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
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to 42 U.S.C. § 1997e(a). The court also denied Mr. 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). We 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
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prison disciplinary conviction. That portion of Mr. 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 were 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
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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. 

Accordingly, for the reasons stated above, we AFFIRM. We further DENY

Boyd’s motion to proceed in forma pauperis.

Entered for the Court

Timothy M. Tymkovich

Circuit Judge