* This order and judgment is not binding precedent, except under the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 10 TH C IR . R. 36.3. 

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

### FEB 13 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ALBERT SMITH, JR.,

Plaintiff-Appellant, No. 03-6263
v. (W.D. Oklahoma) CORRECTIONS CORPORATION OF AMERICA, INC. (“CCA”), OFFICER WOLF, Correctional Officer; OFFICER GOUSE, Correctional Officer, Defendants-Appellees. (D.C. No. CV-02-1591-M)

ORDER AND JUDGMENT *

Before KELLY , HENRY , and TYMKOVICH , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously to decide this case on the briefs witho ut oral argument. See F ED . R. A PP . P. 34(f) and 10 TH C IR . R. 34.1(G). The case is therefore ordered submitte d without oral argument.-2-

Albert Smith, a state prisoner proceeding pro se, appeals the district court’s dismissal without prejudice of his complaint filed pursuant to 42 U.S.C. § 1983. He also seeks to proceed in forma pauperis. The di strict court, in adopting the magistrate judge’s report and recommendation, deter mined that the defendants’ motion to dismiss for failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a) should be granted. Mr. Smith now appeals. We affirm the district court’s dismissal without prejudice. We review de novo a dismissal for failure to exhaus t administrative remedies. Jernigan v. Stuchell , 304 F.3d 1030, 1032 (10th Cir. 2002). Mr. Smith claims that on June 5, 2002, while handcu ffed with his hands behind his back, he was escorted by CCA correctional offic ers to a holding tank. Next, Mr. Smith alleges, the officers escorted in a “skin head white i[n]mate,” uncuffed him, and allowed the unshackled inmate to beat up M r. Smith, using the cuffs to inflict injury. Mr. Smith suffered injuries to his face and eye area; he was bandaged, and refused stitches. Mr. Smith objected to the magistrate’s report and recommendation, which determined he had not exhaust ed his administrative remedies. See § 1997e(a) (“No action shall be brought with respe ct to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”). He not ed that he has been taking-3-

medication for a mental illness and is housed in a mental health unit. He alleged that because he was “not provided with legal assist ance to properly formulate [his] issue and to prepare [administrative] relief, ” he could not exhaust his administrative remedies. Aplt’s Br. at 18. The Supreme Court has held that “exhaustion in § 19 97e(a) cases is now mandatory.” Porter v. Nussle, 534 U.S. 516, 524 (2002); see id. at 532 (holding “that the PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances orparticular episodes, and whether they allege excessive force or some other w rong”). As the Court has stated: “[W]e stress the point . . . that we will n ot read futility or other exceptions into [PLRA’s] statutory exhaustion requirements.” Booth v. Churner , 532 U.S. 731, 741, n.6 (2001). Thus, Mr. Smith is unable to evade the required exhaustion procedures. The grievance procedure is clearly set out in a doc ument filed by CCA. Unfortunately, CCA attached a policy with an effect ive date December 1, 2002, which post-dated June 5, 2002, the date of the alle ged events. Notwithstanding the attachment of the incorrect policy, Mr. Smith a dmits he did not follow the grievance procedure in effect at the time of the al leged events. The district court was correct when it granted CCA’s motion to dismiss without prejudice.-4- II. CONCLUSION Accordingly we AFFIRM the district court’s dismissa l of Mr. Smith’s complaint pursuant to 42 U.S.C. § 1997e(a), and we DENY Mr. Smith’s motion to proceed in forma pauperis. Thus, Mr. Smith is resp onsible for the immediate payment of the unpaid balance of the appellate fili ng fee.

Entered for the Court,

Robert H. Henry Circuit Judge