* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### OCT 6 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GEORGE EDWIN FLORENCE, Plaintiff-Appellant,

v.J.W. BOOKER, JR., Warden, USPLeavenworth; SARA MCKEE, Mail Room Supervisor, USP-Leavenworth, both individually and in their official capacity, Defendants-Appellees. No. 98-3153 (D.C. No. 97-CV-3480) (D. Kan.)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BRORBY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. There fore, the case is ordered submitted without oral argument.-2-

George Edwin Florence appeals the district court’s dismissal of his Bivens claim for failure to exhaust administrative remedie s. We affirm in part, reverse in part, and remand for further proceedings. Florence, a federal inmate, brought this action all eging officials at the facility violated his constitutional rights by open ing legal mail outside his presence. Both facility policy and 28 C.F.R. § 540 .18 direct that such “Special mail,” if properly designated, be opened only in th e presence of the inmate. The district court dismissed the action on the ground that Florence had not complied with The Prison Litigation Reform Act, 42 U.S.C. § 1997e, which provides: “No action shall be brought with respect to prison cond itions under section 1983 of this title, or any other Federal law, by a prisonerconfined in any jail, prison, or other correctional facility until such administrati ve remedies as are available are exhausted.” It is not disputed that Florence, who seeks both injunctive relief and monetary damages, did not seek administrative relie f before filing his complaint. On appeal, Florence contends the district court erred in ignoring Garrett v. Hawk , 127 F.3d 1263 (10th Cir. 1997). He is correct in part. In Garrett , this court held a plaintiff bringing a Bivens claim against prison officials for monetary damages was not required to exhaust administrative remedies because no such remedies were available via the prison grievance system. See id. at 1266-67. The court did not adopt the broader proposition urged by Florence that all Bivens-3-

claims are excluded from the exhaustion requirementof § 1997e. Instead, the court’s limited opinion turned on the fact that whi le Congress intended § 1997e to encompass Bivens claims for monetary damages, it had “to date faile d to provide any administrative remedies that must or even could be exhausted before a Bivens suit may be brought by prisoners against prison officials.” Id. at 1267. Here, the district court did not distinguish betwee n Florence’s monetary and injunctive claims. It is apparent from Garrett , however, that the court erred in dismissing Florence’s Bivens claim for monetary damages as there are currently no available administrative remedies to b e exhausted. In contrast, appropriate administrative remedies are available t o Florence with respect to his claim for injunctive relief. See 28 C.F.R. § 542; see also Russo v. Palmer , 990 F. Supp. 1047, 1050 (N.D. Ill. 1998). As such, that c laim was properly dismissed pursuant to § 1997e for failure to exhaust administrative remedies. We REVERSE the district court’s dismissal of Florence’s Bivens claim for monetary damages, AFFIRM the dismissal of Florence’ s claim for injunctive relief, and remand for further proceedings. Floren ce’s motion for a temporary restraining order filed September 15, 1998, is DENI ED as moot. Entered for the Court Mary Beck Briscoe Circuit Judge