*After examining appellant’s brief and the 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) and 10th Cir. R.

34.1(G). The case is therefore ordered 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Order and Judgment is not binding precedent, except under the doctrines of law of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. 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 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 se, filed the instant

Bivens claim alleging that he was physically abused by employees of the United
1Plaintiff alleges that the March 3rd request was actually the second request

that he sent in, and that his first request was filed on or about February 15 but

“somehow was misplaced and disappeared from the office of my unit team.”

(Aplt. Br. at 18.) To support that allegation, Plaintiff has attached to his brief a

copy of a complaint form apparently filed by a member of the prison’s

investigations division. That complaint form, which is dated February 14, 1996,

states that “complainant has filed a Request for Administrative 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 his administrative appeal would

bar his current claim even if his initial request had been timely filed.

- 2 -

States Penitentiary in Florence, Colorado, where Plaintiff is currently

incarcerated. See Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971). The district court dismissed Plaintiff’s claim for

failure to exhaust administrative remedies pursuant to 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 that he suffered at the hands

of correctional officers on January 27, 1996. Under Federal Bureau of Prisons

regulations, Plaintiff had twenty days after the incident 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 deadline had passed, and the institution

did not receive his request until April 12, 1996, sixty-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 Prisons, 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. (ROA II at Tabs 4, 5.) The

Regional Office denied his appeal as untimely on February 4, 1997. (ROA II at

Tab 5.) Plaintiff had thirty days from that time to 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 untimeliness defect originated from

the untimeliness of the initial appeal to the Regional Office. Thus, Plaintiff’s

missing of the deadline for his first appeal (by more than 250 days) suffices to bar

the instant claim.

The PLRA states, “No action shall be brought with respect to prison

conditions under section 1979 of the Revised Statutes of the United States (42

U.S.C. 1983), or any other Federal law, by a prisoner confined in any jail, prison,

or other correctional facility until such administrative remedies as are available
2The PLRA’s exhaustion requirement also applies to Bivens 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 ‘available’ 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 of relief Plaintiff

seeks, he is nevertheless required to exhaust all administrative remedies before

proceeding with his instant Bivens action. Because his failure to meet the

appropriate filing deadlines for administrative remedies constitutes a failure to

exhaust those remedies, his Bivens claim is barred by the PLRA. 

For the foregoing reasons, we AFFIRM the district court’s dismissal of

Plaintiff’s case. Plaintiff’s motion to proceed without prepayment of filing fees is

GRANTED; Plaintiff must continue making partial payments on court fees and

costs previously assessed until such have been paid in full. All other pending

motions by Plaintiff are DENIED.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge