* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without o ral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court ge nerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the 

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

### DEC 12 2003 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ISAIAS MENDOZA, Plaintiff-Appellant,

v. JANE JOE, Unit Manager; JULIAN PADILLA, Correctional Officer, Cibola County Correctional Center; DARLENE VALLEY, Assistant Shift Commander; ADELIO GALLEGOS, JR., Shift Supervisor; NIKKI DILLON, Medical Administrator, Cibola County Correctional Center; GARLAND JEFFERS, Warden, Cibola County Correctional Center, in their individual and official capacities; DON RUSSELL, Grievance Officer; MR. LEE, Senior Officer, Cibola County Correctional Center, Defendants-Appellees. No. 03-2113 (D.C. No. CIV-02-1611) (New Mexico)



### ORDER AND JUDGMENT *terms and conditions of 10th Cir. R. 36.3. -2- Before SEYMOUR , MURPHY , and O’BRIEN , Circuit Judges.
Isaias Mendoza brought a civil rights complaint aga inst various employees of the New Mexico correctional facility in which he was housed. He alleged violations of the Eighth and Fourteenth Amendments, stemming from a) a confrontation with a prison employee, b) his placem ent in segregation without the opportunity to make a statement or cross-examine wi tnesses, and c) the facility’s failure to treat a back injury sustained while empl oyed as a masonry instructor within the prison. The district court dismissed Mr . Mendoza’s claims without prejudice for failure to exhaust administrative rem edies. We affirm. The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), requires prisoners to exhaust “available” administrative rem edies prior to initiating litigation concerning the conditions of their confi nement. The apparent futility of those remedies does not obviate the need to exhaustthem. Jernigan v. Stuchell , 304 F.3d 1030, 1032 (10th Cir. 2002). Therefore, Mr. Mendoza’s assertion that he attempted to exhaust his administrative remedies does not save him from the dismissal without prejudice issued by the district court. On appeal, Mr. Mendoza argues the PLRA does not app ly in his case–one against a private correctional facility. This cont ention is without merit. In-3-

Jernigan , the court dismissed a claim against the same priv ate company Mr. Mendoza is suing on the ground that the plaintiff i n that case failed to exhaust administrative remedies pursuant to the PLRA. Id. at 1033. See also Herrera v. County of Santa Fe , 213 F. Supp. 2d 1288, 1293 (D. N.M. 2002) (holdin g PLRA exhaustion requirements apply to private entities). The district court’s dismissal without prejudice was proper. We GRANT Mr. Mendoza’s motion to proceed in forma pauperisand AFFIRM the district court’s dismissal of Mr. Mendoza’s claims.
ENTERED FOR THE COURT
Stephanie K. Seymour Circuit Judge