*After examining appellant’s brief and the 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) and 10th Cir. R.

34.1(G). The case is therefore submitted without oral 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judgment is not binding precedent, except under the doctrines of law of the case,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 generally disfavors the citation of

orders and judgments; nevertheless, an order and judgment 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. 

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Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.

Isaias Mendoza brought a civil rights complaint against 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 placement in segregation without the

opportunity to make a statement or cross-examine witnesses, and c) the facility’s

failure to treat a back injury sustained while employed as a masonry instructor

within the prison. The district court dismissed Mr. Mendoza’s claims without

prejudice for failure to exhaust administrative remedies. We affirm.

The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), requires

prisoners to exhaust “available” administrative remedies prior to initiating

litigation concerning the conditions of their confinement. The apparent futility of

those remedies does not obviate the need to exhaust them. 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 apply in his case–one

against a private correctional facility. This contention is without merit. In 
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Jernigan, the court dismissed a claim against the same private company Mr.

Mendoza is suing on the ground that the plaintiff in 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) (holding 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 pauperis and AFFIRM the district court’s dismissal of Mr. Mendoza’s

claims.

ENTERED FOR THE COURT

Stephanie K. Seymour

Circuit Judge