* The case is unanimously ordered submitted withoutoral argument

pursuant to Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 g enerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 15 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

VERYL D. CRAWFORD,

Plaintiff - Appellant,

v. ALLAN DALE FRASIER, Plant Manager, Century Manufacturing Inc., El Dorado, KS; ROBERT SAPIEN, Unit Team Manager, El Dorado Correctional Facility,

Defendants - Appellees. No. 01-3265 (No. 01-CV-3244-GTV) (District of Kansas)

ORDER AND JUDGMENT *

Before EBEL , KELLY , and LUCERO , Circuit Judges.

Plaintiff Veryl D. Crawford, proceeding pro se, app eals the district court’s dismissal of his prisoner’s civil rights complaint pursuant to 42 U.S.C. § 1983, for-2-

failure to exhaust administrative remedies and fail ure to state a claim for relief. We exercise jurisdiction pursuant to 28 U.S.C. § 12 91 and affirm, but we remand with instructions to modify the judgment. Plaintiff is incarcerated in the El Dorado Correcti onal Facility (“EDCF”) in El Dorado, Kansas. In his complaint, he seeks dama ges for the alleged violation of his constitutional rights concerning a workplace incident that resulted in disciplinary action being taken against him. In June 1999, plaintiff was employed at Century Man ufacturing, a private prison industry associated with the EDCF facility. After a verbal altercation with one of Century’s supervisors, plaintiff was removedfrom his work assignment by Allan Dale Frasier, the plant manager. Plaintiff r eceived a work performance disciplinary report, which he claims was based on afalse charge. He was found guilty of the offense specified in the charge and s anctioned with the loss of sixty days of good time. Plaintiff sought damages in district court from Rob ert Sapien, his EDCF unit team manager, for failing to investigate adequ ately the workplace disciplinary report, failing to protect him from th e false charge, and failing to restore him to his workplace assignment. Plaintiff , who is African American, also seeks damages from plant manager Frasier for havingtreated him differently from white inmates who were either not fired or were lat er rehired.-3-

Plaintiff first contends that the district court erred in dismissing his complaint for failure to exhaust administrative rem edies. We review de novo a dismissal for failure to exhaust. See Miller v. Menghini , 213 F.3d 1244, 1246 (10th Cir. 2000). Before both the district court and this Court, plaintiff has documented his failure to exhaust the prison’s admi nistrative grievance procedure, but has argued that no formal exhaustionof administrative remedies is required. Prisoners bringing 42 U.S.C. § 1983 c laims must, however, exhaust available administrative remedies before proceeding in federal court. See 42 U.S.C. § 1997e(a) (“No action shall be brought withrespect to prison conditions under section 1983 of this title, or any other Fede ral law, by a prisoner confined in any jail, prison, or other correctional facilityuntil 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. See Booth v. Churner , 121 S. Ct. 1819, 1825 (2001) (holding exhaustion requirement of 42 U.S.C. § 1997e(a) applicable evenwhere prisoner seeks only monetary relief). Here, plaintiff has not fully an d completely exhausted available administrative remedies. Thus, the district court properly held that he may not proceed on his claims in federal court. Plaintiff next suggests that the district court err ed in dismissing his complaint against Century plant manager Frasier forfailing to state a claim for-4-

relief. We review de novo a dismissal for failure to state a claim. See Perkins v. Kan. Dep’t of Corrs. , 165 F.3d 803, 806 (10th Cir. 1999) (a pplying de novo review to dismissals under § 1915(e)). To the exte nt plaintiff seeks damages from Frasier as a private individual and not a person ac ting under color of state law, no claim for relief can be stated under 42 U.S.C. § 1983. See West v. Atkins , 487 U.S. 42, 48 (1988) (“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution an d laws of the United States, and must show that the alleged deprivation was committe d by a person acting under color of state law.”). Moreover, as the district c ourt noted, even if state action and the lack of administrative remedies in this pri son related industry were to be presumed, plaintiff’s broad and conclusory allegati ons of racial discrimination and retaliation by Frasier would not state a claim for relief. See Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991) (conclusory al legations are insufficient to state a claim on which relief can be based). The d istrict court thus committed no

error. Plaintiff also argues that the district court abuse d its discretion in dismissing his complaint without affording him noti ce and an opportunity to be heard in opposition. A prisoner’s complaint that f ails to state a claim for relief may be dismissed at any time by the district court. See 28 U.S.C. § 1915(e)(2) (“Notwithstanding any filing fee, or portion thereo f, that may have been paid, the-5-

court shall dismiss the case at any time if the cou rt determines that . . . the action or appeal . . . fails to state a claim on which rel ief may be granted.”). The district court’s dismissal of plaintiff’s complaint against Frasier was thus proper. In addition, although the dismissal provision of § 191 5(e)(2) does not authorize the court’s sua sponte dismissal of a prisoner’s claims due to lack of exhaustion of administrative remedies, courts may dismiss actions on their own motion in a broad range of circumstances where they are not exp licitly authorized to do so by statute or rule. See, e.g. , Link v. Wabash R.R. Co. , 370 U.S. 626, 629–32 (1962) (district court has inherent power to dismiss sua s ponte for failure to prosecute); Costello v. United States , 365 U.S. 265, 286–87 (1961) (district court may dismiss sua sponte for plaintiff’s failure to compl y with an order of the court). In his brief before the district court in the present case, plaintiff fully documented his failure to exhaust the administrative remedies available to him and fully argued that his failure to exhaust should be excuse d. Under these circumstances, the district court’s sua sponte dismissal was prope r and did not prejudice plaintiff. Plaintiff is correct, however, that the district co urt did not make clear whether his claims against Sapien and Frasier were dismissed with or without prejudice. With respect to plaintiff’s complaint a gainst Frasier, dismissal for failure to state a claim should be with prejudice. With respect to plaintiff’s complaint against Sapien, dismissal for failure to exhaust should be without1 We also note that plaintiff, as per the district court’s order of August 17,

2001, must continue making partial payments for his district court and appellate filing fees until the entire balance of these fees is paid. -6- prejudice. Finally, we note that the district court granted pl aintiff’s application to proceed without prepayment of the appellate filing fee. Plaintiff’s motion before this Court to proceed without prepayment of costs will thus be denied as moot. 1
We AFFIRM the district court but REMAND with directions to modify the judgment to reflect that plaintiff’s complaint agai nst defendant Frasier is dismissed with prejudice, and that his complaint ag ainst defendant Sapien is dismissed without prejudice. Plaintiff’s Motion fo r Leave to Proceed on Appeal without Prepayment of Costs or Fees is DENIED

. The mandate shall issue forthwith.

Entered for the Court,

Carlos F. Lucero Circuit Judge