* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted w ithout oral argument. This Order and Judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. T he 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 16 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EZELL COLLINS, Plaintiff - Appellant, v. FEDERAL BUREAU OF PRISONS, Actually named as “Bureau of Prisons”; OFFICER MICHAEL S. LAVALEE; OFFICER DAVID PRUYNE; OFFICER CHARLES ROWE; AND OFFICER JOSEPH PATRICK, all in their individual capacities, Defendants - Appellees. No. 02-1503 (D.C. No. 97-M-1533) (D. Colo.)

ORDER AND JUDGMENT *

Before EBEL , HENRY and HARTZ , Circuit Judges.

Plaintiff-Appellant Ezell Collins, proceeding pro s e, filed the instant Bivens claim alleging that he was physically abused by employees of the United1 Plaintiff alleges that the March 3rd request was ac tually the second request

that he sent in, and that his first request was fil ed on or about February 15 but “somehow was misplaced and disappeared from the off ice of my unit team.” (Aplt. Br. at 18.) To support that allegation, Pla intiff has attached to his brief a copy of a complaint form apparently filed by a memb er of the prison’s investigations division. That complaint form, whic h is dated February 14, 1996, states that “complainant has filed a Request for Ad ministrative Remedy with BOP officials,” suggesting that Plaintiff may indeed have filed a valid request for administrative relief prior to March 3rd. But, in any event, Plaintiff’s subsequent failure to meet the requisite deadline for filing h is administrative appeal would bar his current claim even if his initial request h ad been timely filed. - 2 - States Penitentiary in Florence, Colorado, where Pl aintiff is currently incarcerated. See Bivens v. Six Unknown Named Agents of Federal Bure au of Narcotics , 403 U.S. 388 (1971). The district court dismisse d Plaintiff’s claim for failure to exhaust administrative remedies pursuantto the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). (Slip Op. at 2.) We conclude that the district court was correct and AFFIRM its dismissal of Plaintiff’s claim. Plaintiff’s claim arises from an alleged assault th at he suffered at the hands of correctional officers on January 27, 1996. Unde r Federal Bureau of Prisons regulations, Plaintiff had twenty days after the in cident in which to file a request for administrative remedies. 28 C.F.R. § 542.14. He did not sign such a request until March 3, 1996, sixteen days after the deadlin e had passed, and the institution did not receive his request until April 12, 1996, s ixty-three days after the deadline had passed. 1 (ROA II, Tabs 1, 2 & 3.)- 3 -

The Warden signed his response rejecting Plaintiff’ s request on April 19, 1996. (ROA II, Tab 3.) Plaintiff then had twenty days in which to file his appeal to the Regional Office for the Federal Bureau of Pr isons, pursuant to 28 C.F.R. § 542.15. Plaintiff missed this deadline as well: he did not send in his appeal until January 23, 1997, 259 days after the deadline, and it was not received until January 31, 1997, 267 days after the deadline. (RO A II at Tabs 4, 5.) The Regional Office denied his appeal as untimely on Fe bruary 4, 1997. (ROA II at Tab 5.) Plaintiff had thirty days from that time t o appeal to the General Counsel for the Bureau of Prisons. His appeal was received on February 25, 1997, but was rejected as untimely. (ROA II at Tab 7.) Although the appeal from the Regional Office to the General Counsel’s Office was, in fact , within the thirty-day time period provided for that leg of the appeal, the unt imeliness defect originated from the untimeliness of the initial appeal to the Regio nal Office. Thus, Plaintiff’s missing of the deadline for his first appeal (by mo re than 250 days) suffices to bar the instant claim. The PLRA states, “No action shall be brought with r espect to prison conditions under section 1979 of the Revised Statut es of the United States (42 U.S.C. 1983), or any other Federal law, by a prison er confined in any jail, prison, or other correctional facility until such administr ative remedies as are available2 The PLRA’s exhaustion requirement also applies to B ivens claims. See

Yousef v. Reno , 254 F.3d 1214, 1216 (10th Cir. 2001). - 4 - are exhausted.” 42 U.S.C. § 1997e(a). 2 As we explained in Jernigan v. Stuchell , 304 F.3d 1030 (10th Cir. 2002), “Even where the ‘av ailable’ remedies would appear to be futile at providing the kind of remedy sought, the prisoner must exhaust the administrative remedies available.” Id

. at 1032 (citing Booth v. Churner , 532 U.S. 731, 740 (2001)). No matter what kind o f relief Plaintiff seeks, he is nevertheless required to exhaust all a dministrative remedies before proceeding with his instant Bivens action. Because his failure to meet the appropriate filing deadlines for administrative rem edies constitutes a failure to exhaust those remedies, his Bivens claim is barred by the PLRA. For the foregoing reasons, we AFFIRM the district c ourt’s dismissal of Plaintiff’s case. Plaintiff’s motion to proceed wi thout prepayment of filing fees is GRANTED; Plaintiff must continue making partial pay ments on court fees and costs previously assessed until such have been paidin full. All other pending motions by Plaintiff are DENIED. ENTERED FOR THE COURT David M. Ebel Circuit Judge