* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### November 30, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

AB’DULLAH LAMAR RASHID MUHAMMAD, Plaintiff-Appellant,

v. No. 05-6169 SAM CALBONE, Warden; TRAVIS SMITH, Assistant Warden; DENNIS CUNNINGHAM, Administrator; RAMONA HOLLIER, DOC Contract Monitor; D BRANNAM, Special Investigator, GPCF; J CARDWELL, Misconduct Investigator; D UMBARGER, Grievance Coordinator; B SMITH, Disciplinary Hearing Officer, Defendants-Appellees. (D.C. No. CIV-04-688-T) (W.D.Okla.)

ORDER AND JUDGMENT *

Before BRISCOE, LUCERO, and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would notmaterially assist the2

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without ora l argument. Plaintiff Ab’dullah Lamar Rashid Muhammad, a pro se prisoner incarcerated in Oklahoma, appeals the district court’s dismissal without prejudice of his 42 U.S.C. § 1983 action for failure to exhau st administrative remedies. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. I. Background Muhammad filed suit on June 3, 2004, against six employees of the Great Plains Correctional Facility (GPCF), a private pris on operated by Cornell Companies, Inc., and two Oklahoma Department of Corrections (ODOC) employees. Muhammad alleges: 1) defendants denied him due process and equal protection of the laws when they charged and convic ted him of rape; 2) defendants retaliated against him in violation of h is Fifth and Fourteenth Amendment rights when they issued three misconduct reports in response to complaints he lodged against GPCF staff; 3) defendants violated his First Amendment right to exercise his religious beliefs w hen they subjected him to disciplinary action for practicing Zakat (i.e., cha rity); and 4) defendants violated his Fourteenth Amendment rights when defendants too k or misplaced certain items of personal property belonging to Muhammad. As a result of defendants’ conduct, Muhammad contends he was placed in segregation, lost two years of earned credit, and ultimately was transferred to th e Oklahoma State Penitentiary3

(OSP). He seeks an investigation into the treatment of inmates at GPCF and compensatory and punitive damages. The ODOC defendants filed a motion to dismiss Muham mad’s complaint based on his alleged failure to exhaust administrat ive remedies. The remaining defendants subsequently filed a motion to dismiss a lso based in part on the exhaustion requirement. The district court referre d the matter to a magistrate judge who issued a report and recommendation recomm ending that the district court dismiss Muhammad’s complaint for failure to e xhaust administrative remedies. Muhammad filed objections to the report and recommendation, arguing that he exhausted his remedies “to the extent allow ed by the Defendants” and that “Defendant’s [sic] have a habit of ignoring and/or out right refusing to address inmates [sic] Request to Staffs’ [sic] and Grievanc es’ [sic].” ROA, Doc. 35 at 2. In the alternative, Muhammad asked the district cou rt to stay the proceedings to allow him time to exhaust his administrative remedi es and to order the defendants to respond to any grievances he “resubmitted” in an attempt to exhaust his remedies. Id. The district court adopted the magistrate’s report and recommendation, denied Muhammad’s alternative reque sts, and dismissed Muhammad’s complaint in its entirety. II. Standard of Review We review de novo a dismissal for failure to exhaus t administrative remedies. Jernigan v. Stuchell , 304 F.3d 1030, 1032 (10th Cir. 2002) (citation4

omitted).
III. Discussion The Prison Litigation Reform Act (PLRA) provides: “No action shall be brought with respect to prison conditions under sec tion 1983 of this title, or any other Federal law, by a prisoner confined in any ja il, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Moreover, § 1997e(a) imposes a “total exhaustion” requirement, meaning that, if a prisoner brings an action containing multiple challenges to prison conditions, the action must be dismissed for failure to exhaust administrative remedies if the prisoner has failed to exhaust administrative remedies as to any one of the assert ed claims. Ross v. County of Bernalillo , 365 F.3d 1181, 1188-89 (10th Cir. 2004). Under the PLRA, an inmate must complete the entire available grievance proces s to have fully exhausted his or her administrative remedies. Jernigan , 304 F.3d at 1032. We agree with the district court that Muhammad fail ed to demonstrate that he had exhausted administrative remedies on his cla ims. The grievance process available at GPCF requires inmates to first seek in formal resolution of their complaints by submitting a “Request to Staff” form to the appropriate staff member. If a complaint is not resolved informally, the inmate must complete an “Inmate/Offender Grievance Report Form” which is re viewed by the facility head. To fully exhaust his or her remedies, an inmate the n must appeal the decision of5

the facility head to the administrative review auth ority. Complaints regarding disciplinary convictions are handled differently. To exhaust his administrative remedies regarding such convictions, an inmate is r equired to appeal each conviction directly to the ODOC Director. Muhammad attached to his complaint a Request to Sta ff form he submitted dated October 7, 2003, regarding inmate mistreatmen t. ROA, Doc. 1, Ex. C. He attached a second Request to Staff form dated Octob er 10, 2003, regarding retaliation by the same defendant based on allegati ons that the defendant submitted a misconduct report against Muhammad for smoking. ROA, Doc. 1, Ex. E. The record indicates that prison officials reviewed and responded to both forms, but that Muhammad did not file a grievance f orm or take any further action in the grievance process. Accordingly, these forms do not demonstrate that Muhammad exhausted the entire administrative remedyavailable to him. See Jernigan , 304 F.3d at 1032. Muhammad also attached to his complaint a letter he wrote to Senator Harry Coats regarding the treatment of inmates, two Request to Staff forms submitted by another inmate, Ricky Smith, and anoth er Request to Staff form he submitted after being transferred to OSP regarding personal property lost during his transfer. These also fail to demonstrate that Muhammad exhausted his remedies.6

It should also be noted that in subsequent filings, Muhammad included copies of two appeals he lodged regarding his disci plinary convictions for smoking and bartering. The facility head denied hi s appeals. Although Muhammad appears to have exhausted his administrati ve remedies regarding these convictions, Muhammad has failed to meet the “total exhaustion” requirement of § 1997e(a). See Ross , 365 F.3d at 1188-89. Though Muhammad argues that defendants ignore and r efuse to address inmates’ request and grievance forms, Muhammad has failed to present any evidence to support this contention. In fact, disc iplinary convictions aside, the record is devoid of any evidence that Muhammad even attempted to proceed to the second step in the grievance process regarding any of his claims. Accordingly, the district court did not err in dism issing Muhammad’s complaint without prejudice. IV. Conclusion Based on the foregoing, we AFFIRM the order of the district court. We also DENY Muhammad’s motion to proceed without prep ayment of the appellate filing fee. After the district court denied his ea rlier motion in this regard, Muhammad filed a renewed motion with this court mak ing the same request, and this court has assessed costs and fees payable in p artial payments. In light of our7

decision, we now direct Muhammad to make immediate payment of the unpaid balance.

Entered for the Court
Mary Beck Briscoe Circuit Judge