FILED

United States Court of Appeals

Tenth Circuit

April 3, 2013

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID ERIC HUNSAKER,

Plaintiff - Appellant, No. 12-4157

v. (D.C. No. 2:10-CV-00710-CW)

FNU ALEXANDER, Sergeant;

SCOTT CARVER; CLINT S. FRIEL;

DORI GRANGE; FNU KNORR,

Correctional Officer; FNU CUDE,

Correctional Officer; BRYCE

DEGIULIO; MIKE KELLY;

MICHAEL ROBINSON, LPC; KEVIN

ALEXANDER, Sergeant,

Defendants - Appellees.

(D. Utah)

ORDER AND JUDGMENT*

Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.

Plaintiff David Hunsaker, an inmate of the Utah Department of Corrections,

appeals from a decision of the United States District Court for the District of Utah

*

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 
(1) granting summary judgment to Defendant Kevin Alexander on Hunsaker’s

Eighth Amendment claim and (2) denying Hunsaker the opportunity to amend his

complaint because his failure to exhaust administrative remedies would render an

amendment futile. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

Hunsaker filed suit under 42 U.S.C. § 1983, alleging that Alexander

violated his Eighth Amendment right to be free of cruel and unusual punishment. 

He claimed that while he was incarcerated at the Utah State Prison on

November 30, 2006, Alexander, a guard, threw him against a wall, threatened him

with additional violence, held him while two other guards cut off his clothes,

wrapped a sheet around him, and left him in a holding cell for several hours. 

Alexander filed an answer and submitted a Martinez report, see Martinez v.

Aaron, 570 F.2d 317, 319 (10th Cir. 1978) (approving district-court procedure of

requiring prison officials named in civil-rights lawsuits to investigate and report

to court on relevant facts at outset of case), showing that Alexander was not on

duty on November 30, and that Hunsaker had never filed a grievance in

connection with the alleged incident. 

In response, Hunsaker conceded that Alexander had not been the culprit

and requested permission to substitute as defendant an officer he now believed to

have been the assailant. As to exhaustion, Hunsaker alleged in a motion for a

subpoena that he had been denied requested prison forms during the period within

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which he was required to file a grievance. But he did not submit a sworn

statement or any other evidence to substantiate this allegation. 

The district court granted summary judgment to Alexander and dismissed

Hunsaker’s case without granting leave to amend to substitute defendants. 

Because Hunsaker had neither exhausted his administrative remedies nor

presented evidence that such remedies were unavailable, the court concluded that

“it would be futile to allow Plaintiff to further amend his complaint to name a

new defendant.” R., Vol. 1 at 243 (Memorandum Decision & Order at 8,

Hunsaker v. Alexander, No. 2:10-cv-00710-CW (D. Utah Aug. 22, 2012)).

On appeal from a summary judgment, we review the district court’s

decision de novo, “applying the same standards that the district court should have

applied.” Merrifield v. Bd. of Cnty. Comm’rs, 654 F.3d 1073, 1077 (10th Cir.

2011) (internal quotation marks omitted). Summary judgment is appropriate if

the pleadings and the record establish that there is no genuine issue of material

fact and that the moving party is entitled to judgment as a matter of law. See id. 

Hunsaker does not dispute the dismissal of Alexander, so the only issue

before us is whether it was proper to deny his motion to amend because of his

failure to exhaust. The Prison Litigation Reform Act requires that a prisoner

exhaust his administrative remedies before bringing a lawsuit for violation of his

federally protected rights. See 42 U.S.C. § 1997e(a) (“No action shall be brought

with respect to prison conditions under section 1983 of this title, or any other

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Federal law, by a prisoner confined in any jail, prison, or other correctional

facility until such administrative remedies as are available are exhausted.”). 

“[T]he PLRA’s exhaustion requirement applies to all inmate suits about prison

life, whether they involve general circumstances or particular episodes, and

whether they allege excessive force or some other wrong.” Porter v. Nussle, 534

U.S. 516, 532 (2002). There is no question that Hunsaker failed to exhaust

available administrative remedies. Although “an administrative remedy is not

‘available’ under the PLRA if prison officials prevent, thwart, or hinder a

prisoner’s efforts to avail himself of the administrative remedy,” Tuckel v.

Grover, 660 F.3d 1249, 1252 (10th Cir. 2011) (brackets and internal quotation

marks omitted), Hunsaker produced no evidence of such misconduct.

On appeal Hunsaker quotes prison regulations that he claims support his

assertion that grievance procedures were rendered “unavailable” to him. But he

did not present these regulations to the district court. “Absent extraordinary

circumstances, we will not consider arguments raised for the first time on

appeal,” Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1143 (10th Cir. 2009),

and we decline to do so here.

Accordingly, any claim by Hunsaker in an amended complaint would be

doomed for lack of exhaustion. And when amending a complaint would be futile,

the district court may properly refuse to allow the amendment. See Anderson v.

Suiters, 499 F.3d 1228, 1238 (10th Cir. 2007).

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We AFFIRM the district court’s judgment, DENY Hunsaker’s motion to

proceed in forma pauperis, and order immediate payment of the filing fee. 

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge

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