* The case is unanimously ordered submitted without oral argument

pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court g enerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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

### DEC 1 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GUILLERMO BARRON-BACA, Plaintiff - Appellant,

v. JANNIE SHOEMAKER, Warden, D.R.D.C.; ANITA BLOOR, Health Provider, D.R.D.C.; JANETTE LINDSAY, Health Provider, D.R.D.C., Defendants - Appellees. No. 04-1150 (D.C. No. 02-N-2274 (PAC)) (District of Colorado)

ORDER AND JUDGMENT *

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

Guillermo Barron-Baca appeals the district court’s dismissal of his § 1983 suit alleging Eighth Amendment violations by prison officials. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM

.2

Barron-Baca, an inmate proceeding pro se, alleges t hat the defendants were deliberately indifferent to his serious medical nee ds, in contravention of the Eighth Amendment, by failing to provide him with an elbow splint and physical therapy in a timely manner. On June 8, 2000, Barro n-Baca underwent surgery on his left elbow and received doctor’s orders recomme nding a splint and physical therapy. Defendants allegedly failed to provide th e splint until mid-August 2000, and did not schedule physical therapy until mid-Jul y 2000. Barron-Baca’s doctor told him on December 6, 2000 that he would not rega in full movement in his elbow. On October 16, 2002, nearly two years later, Barron -Baca initiated a Step I grievance seeking “monetary compensation in the max imum allowable amount under the law.” Because Barron-Baca failed to file the grievance within “thirty (30) calendar days from the date the offender knew or should have known of the facts giving rise to the grievance,” Colo. Dep’t Co rrections Admin. Reg. § 850- 04, IV.C.2a, his grievance was rejected. The griev ance regulations permit certain prison officials to grant an extension when the “of fender clearly demonstrates that it was not feasible to file within the initial peri od.” Id. at IV.C.2b. Barron-Baca never attempted to demonstrate that it was infeasib le for him to file his grievance in a timely manner. Barron-Baca then sued in district court seeking rel ief under § 1983.3

Because Barron-Baca failed to exhaust administrativ e remedies under the Prison Litigation Reform Act (“PLRA”), the court below dis missed his suit with prejudice; Barron-Baca appeals. “We review de novo the district court’s finding of failure to exhaust administrative remedies.” Je rnigan v. Stuchell , 304 F.3d 1030, 1032 (10th Cir. 2002). Pursuant to 42 U.S.C. § 1997e, “[n]o action shall b e brought with respect to prison conditions under [§ 1983], or any other Fede ral law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” “[A] complaint th at fails to allege the requisite exhaustion of remedies is tantamount to one that fa ils to state a claim upon which relief may be granted.” Steele v. Federal Bureau o f Prisons , 355 F.3d 1204, 1210 (10th Cir. 2003) (quotation omitted). On appeal, Barron-Baca argues that the PLRA require s inmates to exhaust only those administrative remedies that are availab le to them; because he filed his first grievance late, no administrative remedies we re available at that time. Therefore, Barron-Baca urges this court to excuse h is failure to complete the internal grievance process. Our decision in Ross v . County of Bernalillo , 365 F.3d 1181 (10th Cir. 2004) forecloses Barron-Baca’s argument. In Ross , we concluded that “[a]llowing prisoners to proceed to federal court simply because they have filed a time-barred grievance would frust rate the PLRA’s” policy goals.2 In his reply brief, Barron-Baca argues that prison officials failed to supply

him with a Spanish language explanation of the grie vance procedure which, as a non-English speaker, left him ignorant of the relev ant requirements. He did not raise this argument below and mentions it for the f irst time in his reply brief. Except in extraordinary circumstances, this court w ill not consider an issue that was not before the trial court. In re Walker , 959 F.2d 894, 896 (10th Cir. 1992). Additionally, failure to raise an issue in the open ing appellate brief waives that issue. See State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994). Therefore, we decline to consider this argu ment. 4 Id. at 1186. Accordingly, we held that “[a] prison pr ocedure that is procedurally barred and thus is unavailable to a prisoner is not thereby considered exhausted. Regardless of whether a prisoner goes through the f ormality of submitting a time-barred grievance, he may not successfully argu e that he had exhausted his administrative remedies . . . .” Id. (citation omitted). Therefore, the district court correctly concluded that Barron-Baca failed to exha ust administrative remedies by not filing his grievance in a timely manner, and pr operly dismissed his complaint. 2 Finally, Barron-Baca argues that the district court erred by dismissing his complaint with prejudice. We have held that “[i]f a prisoner does submit a complaint containing one or more unexhausted claims , the district court ordinarily must dismiss the entire action withoutprejudice.” Id. at 1190 (emphasis added). Because Barron-Baca filed his complaint on the day before the statute of limitations expired, even if the court dismissed hi s complaint without prejudice, Barron-Baca could not re-file his § 1983 suit withi n the statutory period.3 The court below concluded pursuant to 28 U.S.C. § 1915(a)(3) that this

appeal is frivolous and not taken in good faith. A t the time the court below issued its order dismissing Barron-Baca’s complaint , we had not yet decided whether an untimely-filed grievance constituted fai lure to exhaust administrative remedies. Therefore, we conclude that Barron-Baca brought this non-frivolous appeal in good faith. 5 Therefore, any alleged error by the district court is harmless. 3 Accordingly, we AFFIRM the district court’s order dismissing BarronBaca’s complaint. We remind Mr. Barron-Baca that h e must continue his payments until his fee is paid in full.
ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge