Case Information
*2 Before POR FIL IO, B AL DOC K , and EBEL , Circuit Judges.
Plаintiff Brian L. Brown, a federal prisoner proceeding pro se, appeals the
district court’s order dismissing his claims of cruel and unusual punishment
аgainst federal prison personnel, brought pursuant to
Bivens v. Six Unkown
Named Agents of Federal Bureau of Narcotics
,
Appellate Jurisdiction
W e have appellate jurisdiction only over the district court’s order
dismissing M r. Brown’s сlaims. W hile his motion for reconsideration was
*3
pending, M r. Brow n filed a notice of appeal from the judgment of dismissal. He
did not file a new or аmended notice of appeal after the district court entered the
order denying reconsideration. Accordingly, we do not havе jurisdiction over the
order denying reconsideration. Fed. R. App. P. 4(a)(4)(B)(ii);
Anderson v. State
Farm M ut. Auto. Ins. Co.
,
Background
M r. Brown filed several prison grievances alleging that prison officials hаrassed and injured him. The district court determined that he had not fully exhausted any of the grievances. See Ross v. County of Bernalillo , 365 F.3d 1181, 1189 (10th Cir. 2004) (holding that Prison Litigation Reform Act 42 U.S.C. § 1997e(a) contains “a total exhaustion requirement;” accordingly, where complaint contains unexhausted claims, district court is required to dismiss entire action). Consequently, the district court dismissed the complaint. [1]
On appeal, M r. Brown asserts (1) he followed the prison grievance
procedures diсtated by 28 C.F.R. § 542.18 for emergencies, and he should be
excused from complying with the filing deadlines because prison officials did not
respond to his emergency grievances within the time provided by that section,
(2) under
Rhines v. Weber
,
Legal Framework
Under the Prison Litigation Reform Act (PLRA), “[n]o action shall 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, or оther correctional
facility until such administrative remedies as are available are exhausted.”
42 U.S.C. § 1997e(a). Exhaustion is required “regardless оf the relief offered
through administrative procedures.”
Booth v. Churner
,
“We review
de novo
a district court’s dismissal of an inmate’s suit for
failure to exhaust his or her administrative remedies.”
Patel v. Fleming
, 415 F.3d
1105, 1108 (10th Cir. 2005). Plaintiff is representing himself on appeal so his
*5
pleadings will be liberally construed.
See Haines v. Kerner
,
Discussion
M r. Brown first asserts that his prison grievances w ere exhausted fully under 28 C.F.R. § 542.18. He argues that beсause his grievances were emergencies, the warden’s response was required within three days, rather than twenty calendar days. He relies on the following language of § 542.18: “If the [A dministrative Remedy] Request is determined to be of an emergency nature which threatens the inmate’s immediate health or welfare, the W arden shall respond not later than the third calendar day after filing.” The warden did not respond within three days of the dаte he filed any of his six grievances. Therefore, according to M r. Brown, he is excused from complying with the grievance procedure timе limits.
W e need not address how § 542.18’s provision for treatment of an emergency grievance should be applied because even if it should have been applied to *6 M r. Brown’s grievances, he was still required to exhaust fully those grievances. Jernigan v. Stuchell , 304 F.3d 1030, 1032 (10th Cir. 2002) (holding “inmate who begins the grievance prоcess but does not complete it is barred from pursuing a [civil rights] claim under PLR A for failure to exhaust his administrative remedies”). M r. B rown does not claim thаt he exhausted his grievances according to the procedures mandated by 28 C.F.R. §§ 542.13 through 542.18. Accordingly, w e affirm the district court’s order dismissing M r. Brown’s claims for failure to exhaust administrative remedies.
M r. Brown next argues that the district court should not have dismissed his
case but, instead, should have permitted him to еxhaust his prison grievance
remedies. He asserts that under
Rhines v. Weber
,
Finally, M r. Brown argues that he should be excused from the exhaustion requirement because prison officials (1) engaged in a deliberate practice of failing *7 to process grievances in a timely manner, (2) did not clearly instruct him on how to meet thе filing deadlines, and (3) refused to prepare the necessary letters to explain that the filing delays were not his fault. W e do not address the merits of these arguments because they were not presented to the district court or they were raised for the first time in the post-judgment motion tо reconsider. As noted above, we decline to consider issues not presented to the district court, and we have no jurisdiction to review the order denying reconsideration. In making this determination, we have carefully review ed the record on appeal, particularly documents 91 and 92, which are M r. Brown’s response and brief in opposition to defendants’ motion to dismiss.
The district court granted M r. Brown’s motion to prоceed without prepayment of costs and fees. He is reminded that he is obligated to continue making partial payments until the entire fee has been paid.
The judgment of the district court is AFFIRMED.
Entered for the Court Bobby R. Baldock Circuit Judge
Notes
[*] After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not mаterially 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 estoppеl. 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.
[1] The district court also ruled on various other motions, none of w hich are before us in this appeal.