*

After examining the briefs and 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); 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not binding precedent except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED

United States Court of Appeals

Tenth Circuit

April 2, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOSEPH FLORES,

Plaintiff - Appellant, No. 09-2240

v. (D. N.M.)

C/O M. DELEVARQUEZ; SGT

CARRY,

Defendants - Appellees.

(D.C. No. 2:07-CV-01306-RB-LAM)

ORDER AND JUDGMENT*

Before HARTZ, SEYMOUR, and EBEL, Circuit Judges.

On December 27, 2007, Joseph Flores filed a pro se complaint under

42 U.S.C. § 1983 against Defendants. He alleged that a correctional officer at the

Central New Mexico Correctional Facility (CNMCF), where he was incarcerated,

had entered his cell and pushed him backwards onto the concrete floor with a

malicious intent to cause unnecessary harm, in violation of his Eighth

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Amendment rights. In addition, Mr. Flores has alleged that he was retaliated

against by being transferred to different facilities, having his property kept from

him, and having legal materials and court mail kept from him and delayed past

court time lines. 

On September 8, 2008, the district court sua sponte dismissed Mr. Flores’s

claims against CNMCF–Wardens Security because the complaint contained no

allegations linking that defendant to the alleged constitutional violation. After

preparation of the court-ordered Martinez report, see Martinez v. Aaron, 570 F.2d

317 (10th Cir. 1978), defense counsel moved to dismiss the complaint against all

remaining defendants on the grounds that Mr. Flores had failed to exhaust

administrative remedies and had failed to state a claim on which relief can be

granted. The magistrate judge treated the motion as a motion for summary

judgment so that it could consider additional factual material required to resolve

the exhaustion issue. See Whitesel v. Sengenberger, 222 F.3d 861, 866 (10th Cir.

2000). The magistrate judge then recommended that the complaint be dismissed

for failure to exhaust administrative remedies. The district court rejected

Mr. Flores’s objections to the recommendation and dismissed the case without

prejudice. It denied Mr. Flores’s motion for leave to file an amended complaint

because the amendment would be futile.

On appeal Mr. Flores argues (1) that the district court erred in holding that

he had failed to exhaust all available administrative remedies and (2) that it erred

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1

Mr. Flores also argues that the district court erred in ruling that his

complaint was moot. But the district court did not hold that Mr. Flores’s

complaint was moot, and Defendants do not argue to the contrary. Hence, we

need not address this issue.

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in denying his motion to amend his complaint.1 We have jurisdiction under

28 U.S.C. § 1291 and affirm.

The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), requires

that a prisoner exhaust administrative remedies before filing a § 1983 action with

respect to prison conditions. “An inmate who begins the grievance process but

does not complete it is barred from pursuing a [federal] claim under the PLRA for

failure to exhaust his administrative remedies.” Jernigan v. Stuchell, 304 F.3d

1030, 1032 (10th Cir. 2002).

The New Mexico Corrections Department requires an inmate to (1) file an

informal complaint within five days from the date of the incident, (2) file a formal

grievance using the Inmate Grievance Form within 20 days of the incident if the

informal complaint does not resolve the issue, and (3) appeal the Warden’s

decision to the Office of the Secretary of Corrections within seven days of

receiving the Warden’s decision. Mr. Flores alleges that he completed the first

step of the grievance procedure but was unable to pursue his administrative

remedies further because he was placed in segregation and was denied access to

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2

On appeal Mr. Flores for the first time contends that he was in segregation

for all of the 20-day period. We will not consider an issue that was not raised

before the district court. See Walker v. Mather (In re Walker), 959 F.2d 894, 896

(10th Cir. 1992). 

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grievance forms during the 20-day time period within which he had to file his

formal grievance.2

The district court’s opinion persuasively explains the propriety of its

dismissal of Mr. Flores’s complaint and its denial of his motion to amend. We

therefore AFFIRM the judgment below. We GRANT Mr. Flores’s motion to

proceed in forma pauperis on appeal. We remind him of his obligation to

continue making partial payments until the entire filing fee has been paid.

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge

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