*After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines o f law of the case, res judicata , and collateral estoppel.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. 

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

### JUN 19 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

HENRY RAY TAFOYA, Plaintiff-Appellant, v. CHARLES SIMMONS, Director of Kansas Department of Corrections; ROBERT D. HANNIGAN, Warden, Hutchinson Correctional Facility, Defendants-Appellees. No. 96-3237 (D.C. No. 96-3317-GTV) (D. Kan.)

ORDER AND JUDGMENT *

Before BRORBY , EBEL and KELLY , Circuit Judges.

Plaintiff Henry Ray Tafoya (“Tafoya”) appeals the d istrict court’s dismissal of his civil rights complaint filed pursuant to 42 U.S.C. § 1983 after determining that Tafoya had not exhausted available administrat ive remedies through the- 2 -

prison grievance procedure. We exercise jurisdicti on under 28 U.S.C. § 1291(a)(1) and AFFIRM.

BACKGROUND On June 17, 1996, Tafoya filed this § 1983 action c laiming that Charles Simmons (“Simmons”), as Director of the Kansas Depa rtment of Corrections, and Robert D. Hannigan (“Hannigan”), as Warden of the H utchinson Correctional Facility (“Hutchinson”), had violated his constitut ional rights under color of state law. (ROA, ex. C). Tafoya claimed, inter alia , that the prison conditions at Hutchinson were sufficiently poor to violate his Ei ghth Amendment right to be free from cruel and unusual punishment, that the de fendants’ failure to train correctional officers at Hutchinson violated his su bstantive due process rights under the Fourteenth Amendment, and that Hutchinson ’s practice of subjecting prisoners to disciplinary hearings violated the pri soners’ right to be free from double jeopardy. (Id. ). Tafoya seeks monetary damages and various forms of injunctive relief. (Id. ). The district court did not address the merits of Ta foya’s claims but, rather, dismissed his claims for failure to exhaust adminis trative remedies under 42 U.S.C. § 1997e(a) (West Supp. 1997). (D.Ct. Order). Tafoya appeals on the grounds that exhaustion would have been futile. (Ap lt. Brief, at 3).- 3 - DISCUSSION 42 U.S.C. § 1997e(a) provides that “[n]o action sha ll be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, orother correctional facility until such administrative remedies as are available are e xhausted.” 42 U.S.C. § 1997e(a) (West Supp. 1997). Tafoya concedes that he has not exhausted administr ative remedies, but argues that he does not need to exhaust where exhau stion would be futile. Tafoya relies on Deltona Corp. v. Alexander , 682 F.2d 888 (11th Cir. 1982) for the proposition that “[c]ourts will not require exhaust ion . . . when the administrative remedy is inadequate because it does not exist, wou ld not provide relief commensurate with the claim, or would be so unreaso nably delayed as to create a serious risk of irreparable injury.” Id. at 893. Tafoya’s arguments are misplaced. As an initial matter, courts look to the kind of in stitutional and individual interests weighed by the Deltonacourt only when Congress has not spoken to whether exhaustion is required. “Of paramount impo rtance to any exhaustion inquiry is congressional intent[;]” thus, “[w]here Congress specifically mandates, exhaustion is required.” McCarthy v. Madigan , 503 U.S. 140, 144 (1992). With regard to prison conditions litigation, Congress ha s specifically mandated1 Although 42 U.S.C. § 1997e(a) only requires the ex haustion of any

administrative remedies that are “available,” Tafoy a has not argued that there are no administrative remedies available with regard to his claims. - 4 - exhaustion, see 42 U.S.C. § 1997e(a) (West Supp. 1997), 1 and thus we do not weigh the fairness of that requirement. Moreover, Tafoya has not made any showing that exha usting administrative remedies would be futile in this case; rather, he r elies on the conclusory allegation that “the administrations actions will notresolve the merits of this action.” (Aplt. Brief, at 3) (emphasis in original ). Thus, even if we believed futility were relevant, we would have no evidence b y which to determine whether, in fact, it would be futile to require Tafoya to ex haust.

CONCLUSION Because Tafoya has not exhausted administrative rem edies with regard to his civil rights claim as required by 42 U.S.C. § 1 997e(a), we AFFIRM the district court’s dismissal of Tafoya’s case. The mandate shall issue forthwith. ENTERED FOR THE COURT

David M. Ebel Circuit Judge