*

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

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This 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, 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.

FILED

United States Court of Appeals

Tenth Circuit

June 16, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BEAU JAMES MUSACCO,

Plaintiff-Appellant, No. 08-2261

v. District of New Mexico

RON TORRES, Director, Bernalillo

County Metropolitan Detention

Center, C.O. SAVARILLO, LARRY

GRANT, C.O. and KENNETH

FLOWERS, C.O.,

Defendants-Appellees.

(D.C. No. 6:07-CV-00721-MV-LFG)

ORDER AND JUDGMENT*

Before LUCERO, MURPHY and McCONNELL, Circuit Judges.

Beau James Musacco, a state prisoner proceeding pro se, appeals the

district court’s order dismissing his 42 U.S.C. § 1983 action for failure to exhaust
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administrative remedies under the Prison Litigation Reform Act (“PLRA”) 42

U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. Because we

conclude that Mr. Mussaco filed his suit prematurely, we affirm the district

court’s decision and dismiss the appeal. We also deny his motion for increased

access to a law library and grant his motion to make partial payments under 28

U.S.C. § 1915. 

BACKGROUND

On July 27, 2007, Mr. Musacco filed a § 1983 action asserting inadequate

medical and dental care, assault, and mishandled mail. Mr. Musacco voluntarily

dismissed his medical and mail claims; his dental care and assault claims

proceeded. After reviewing the defendants’ Martinez reports, the magistrate

judge recommended dismissing the assault claims with prejudice but allowing the

dental claim to proceed. 

Defendant Ron Torres objected to the dental claim recommendation,

arguing inter alia that Mr. Musacco failed to exhaust his administrative remedies

as required by the PLRA. He also supplemented the Martinez report with

affidavits and evidence. Mr. Musacco did not object to the magistrate’s

recommendation, but did respond to Mr. Torres’s objections. 

The district court adopted the magistrate’s recommendation on the assault

claims but, based on Mr. Torres’s submission, dismissed the dental claim without

prejudice for lack of exhaustion. Mr. Musacco appeals only the dental claim. 
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DISCUSSION

A. Dismissal of Dental Claim

We review dismissal under the PLRA for failure to exhaust administrative

remedies de novo. Ross v. County of Bernalillo, 365 F.3d 1181, 1185 (10th Cir.

2004). The PLRA provides that “[n]o action shall be brought with respect to

prison conditions under section 1983 of this title . . . by a prisoner confined in

any jail, prison, or other correctional facility until such administrative remedies as

are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA’s exhaustion

requirement specifies that a prisoner’s claim be administratively exhausted prior

to the filing of the action in court. Porter v. Nussle, 534 U.S. 516, 524 (2002). It

is undisputed that Mr. Musacco filed his lawsuit before the time for prison

officials to respond to his grievance had expired. The district court therefore

properly dismissed his dental claim.

Mr. Musacco contends that the district court should not have considered the

affidavits and evidence Mr. Torres submitted after the magistrate judge

recommended allowing the dental claim to proceed. That is not correct. If a

party objects to a magistrate’s recommendation, the Federal Rules of Civil

Procedure provide that “[t]he district judge may accept, reject, or modify the

recommended decision, receive further evidence, or recommit the matter to the

magistrate judge with instructions.” Fed. R. Civ. P. 72(b) (emphasis added). 

Moreover, under 28 U.S.C. § 636(b), “The judge may also receive further
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evidence or recommit the matter to the magistrate judge with instructions.” In

accordance with these provisions, this Court has held that the district court may

receive additional evidence after the magistrate judge makes a recommendation. 

Hunnicutt v. Hawk, 229 F.3d 997, 1001–02 (10th Cir. 2000). The district court,

in its discretion and in the interest of rendering a decision on the basis of a

complete record, properly considered the evidence submitted by Mr. Torres in

support of his objections. 

 Mr. Musacco also contends that his lawsuit should not be dismissed for

failure to exhaust administrative remedies because the relevant prison officials

withhold policy handbooks, make it difficult for inmates to file grievances, and

do not adhere to the formal grievance policy themselves. However, the record

indicates that Mr. Musacco received grievance procedure training, signed a form

acknowledging this training, and had a working knowledge of the grievance

procedure. Indeed, the record demonstrates that he has submitted multiple

grievances, showing that he is adequately familiar with the procedures. 

Moreover, any alleged interference with his ability to file and complete the

grievance procedure is irrelevant, since there was no procedural defect in the

forms he submitted in support of his grievance. The problem is that he did not

allow his dental care grievance to proceed to its conclusion before he filed the

present suit. 
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This Court has held that a prisoner cannot be required to wait indefinitely

for a response to his grievance before he may seek judicial review. See Jernigan

v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). Indeed, prison officials’

“failure to respond to a grievance within the time limits contained in the

grievance policy renders an administrative remedy unavailable.” Id. Thus, if the

prison officials failed to respond to Mr. Musacco until more than two months

after he submitted his grievance, as the record suggests, he was entitled to file

suit after the time limits had expired. Mr. Musacco, however, did not wait for

this to take place. Instead, he filed suit while the process was still underway. 

Thus, his administrative remedies had not been exhausted. 

B. Other Motions

On appeal, Mr. Musacco also makes a claim that he was denied adequate

access to the prison law library, but he did not make this claim before the district

court, and it is therefore waived. In any event, he has not demonstrated an actual

injury. A prisoner does not demonstrate a constitutional violation “simply by

establishing that his prison’s law library or legal assistance program is subpar in

some theoretical sense.” Lewis v. Casey, 518 U.S. 343, 351 (1996). He must “go

one step further and demonstrate that the alleged shortcomings in the library or

legal assistance program hindered his efforts to pursue a legal claim.” Id. This

Mr. Musacco had not done. 
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We grant Mr. Musacco’s motion to proceed on this appeal by partial

payment under 28 U.S.C. § 1915. Although he has not prevailed on the merits, he

appears to have proceeded on the basis of a good faith misreading of the

complicated rules for exhaustion. 

CONCLUSION

We AFFIRM the district court’s judgment against Mr. Musacco and

DISMISS this appeal. We also DENY Mr. Musacco’s motion for access to a law

library, but GRANT his motion to proceed on appeal by partial payments

pursuant to 28 U.S.C. § 1915. He is reminded to make those payments as

scheduled.

Entered for the Court

Michael W. McConnell

Circuit Judge