F I L E D

United States Court of Appeals

Tenth Circuit

FEB 7 2003

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT WAYNE HAMBY,

Plaintiff - Appellant,

v.

LENORA JORDAN, Warden JCCC;

WACKENHUT CORRECTIONAL

FACILITY, Warden; and JAMES L.

SAFFLE, Director OK DOC,

Defendants - Appellees.

No. 02-6253

D.C. No. CIV-01-620-L

(W.D. Oklahoma)

ORDER AND JUDGMENT

Before EBEL , HENRY , and HARTZ , Circuit Judges.

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 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 terms and

conditions of 10th Cir. R. 36.3.
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Plaintiff Robert Wayne Hamby, an Oklahoma state inmate appearing pro se,

brought this 42 U.S.C. § 1983 action against various prison officials, alleging that

those officials (1) violated the Eighth Amendment by failing to protect him from

attacks by other inmates and (2) violated his due process rights by arbitrarily

taking away 832 of his earned credits. The magistrate judge recommended

dismissing the complaint without prejudice based on Plaintiff’s failure to exhaust

his administrative remedies. The district court adopted that recommendation and

dismissed the action without prejudice, but ordered the Department of Corrections

to permit Plaintiff to file an administrative grievance out-of-time, and further

ordered Plaintiff to submit that grievance within 30 days. Plaintiff then filed this

appeal. 

“We review de novo the district court’s finding of failure to exhaust

administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.

2002). The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), requires

a prisoner to exhaust “available” administrative remedies before filing an action

with respect to prison conditions under § 1983. Jernigan, 304 F.3d at 1032. “An

inmate who begins the grievance process but does not complete it is barred from

pursuing a § 1983 claim under PLRA for failure to exhaust his administrative

remedies.” Id. 

Apparently, Plaintiff does not dispute that he has not exhausted those
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remedies, but argues that he should not be required to exhaust because (1)

exhaustion would be futile since the time for filing his grievance had expired; (2)

he does not believe that prison officials will effectively assist him during the

grievance process; and (3) his case involves an “emergency situation” which must

be addressed as soon as possible. 

We disagree. The Supreme Court has declined to read “futility or other

exceptions” into the PLRA’s exhaustion requirement. See Booth v. Churner, 532

U.S. 731, 741 & n.6 (2001). “Congress ha[s] eliminated both discretion to

dispense with administrative exhaustion and the condition that it be ‘plain,

speedy, and effective.’” Jernigan, 304 F.3d at 1032 (quoting Booth, 532 U.S. at

739). Moreover, Plaintiff “may not successfully argue that he had exhausted his

administrative remedies by, in essence, failing to employ them and since he may

now be time barred from pursuing them, they are exhausted by default.” Id. at

1033. This proposition has particular force where, as here, the district court

granted extra time to pursue administrative remedies. Finally, we note that the

Department of Corrections’ grievance policy provides for an emergency grievance

procedure. 
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Accordingly, for substantially the same reasons set forth in the magistrate

judge’s recommendation dated April 30, 2002, and the district court’s order dated

July 29, 2002, we AFFIRM the judgment of the district court.

Entered for the Court

Harris L Hartz

Circuit Judge