                                                                 FILED
                                                      United States Court of Appeals
                                                              Tenth Circuit

                                                             May 21, 2010
                  UNITED STATES COURT OF APPEALS
                                               Elisabeth A. Shumaker
                                                             Clerk of Court
                         FOR THE TENTH CIRCUIT


MALACHI Z. YORK, a/k/a DWIGHT
YORK,

            Plaintiff-Appellant,

v.                                              Nos. 09-1283 & 09-1284
                                          (D.C. No. 1:07-CV-01297-PAB-KLM)
FEDERAL BUREAU OF PRISONS;                              (D. Colo.)
MAUREEN CRUZ, former Associate
Warden; JACK FOX, Associate
Warden; BRIAN A. BLEDSOE,
Warden; L. MCDERMOTT, Health
Services Specialist; S. SMITH,
SIS Technician; S. NAFZIGER, MD,
Clinical Director; C.W. WELCH,
Physician Assistant; MICHAEL
NALLEY, Regional Director;
D. SCHIEFELBEIN, Physician’s
Assistant; J. T. SHARTLE, former
Associate Warden; RON WILEY,
Warden; HERMAN O. LYLE, MD,
Consultant Internist; IVAN NEGRON,
MD, Medical Director; RATAEL
ROMAN, MD, Clinical Director;
RAIEZ, Health Administrator;
G. HICKS, Physician Assistant;
J.F. CASTILLO, Physician Assistant;
RICK STALLKAMP, Pharmacist;
LAWRENCE LEYBA, D.O., Clinical
Director; M. MILLER, Physician
Assistant; A. VINYARD, Physician
Assistant; Y. FETTERHOFF, Imaging
Techniques Specialist; M. SWANN,
Practitioner Assistant, each in his/her
individual and official capacities.

            Defendants-Appellees.
                          ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, TYMKOVICH, and GORSUCH, Circuit
Judges.



      Appellant Malachi Z. York, a federal prisoner in the Administrative

Maximum Prison (ADX) in Florence, Colorado, filed a complaint pursuant to

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.

388 (1971), alleging that the Federal Bureau of Prisons violated his constitutional

rights. Specifically, he alleged that his confinement at ADX violated the Fifth

Amendment and that the medical care he has received violated the Eighth

Amendment. The district court referred the matter to a magistrate judge, who

recommended summary judgment in favor of the Federal Bureau of Prisons

because Mr. York had failed to exhaust his administrative remedies, as required

by 42 U.S.C. § 1997e(a). The district court adopted the magistrate judge’s report

and dismissed Mr. York’s complaint without prejudice. Mr. York, proceeding pro




*
  After examining appellant’s briefs 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 cases are 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.

                                        -2-
se, appeals from the district court’s order. Because we agree that Mr. York failed

to exhaust his administrative remedies, we affirm. 1

                                      *    *    *

      Before addressing the merits of Mr. York’s appeal, we must resolve an

outstanding request to intervene on appeal. The notices of appeal in these

consolidated cases include United Nuwaupians Worldwide as an appellant, and

the notice of appeal in case No. 09-1284 lists Paralegal Professional Inc. and

Yamassee as additional appellants. Because Mr. York was the only party-plaintiff

in the district court, we ordered these putative appellants to file a jurisdictional

brief addressing their standing to appeal. See Marino v. Ortiz, 484 U.S. 301, 304

(1988) (“The rule that only parties to a lawsuit, or those that properly become

parties, may appeal an adverse judgment is well-settled.”).

      Having considered that submission, we construe it as a motion to intervene

pursuant to Fed. R. Civ. P. 24, and we deny the request to intervene. The putative

appellants never sought to intervene before appeal. “[O]nly in an exceptional

case for imperative reasons,” may a court of appeals “permit intervention where

none was sought in the district court.” Hutchinson v. Pfeil, 211 F.3d 515, 519



1
   The district court also dismissed Mr. York’s claims against a number of
individual officers at ADX because Mr. York failed to serve his complaint on
these individual defendants. See Fed. R. Civ. P. 4(m). Mr. York has not
adequately challenged that aspect of the district court’s order, and thus we need
not address the issue.

                                          -3-
(10th Cir. 2000) (internal quotation marks omitted). And nothing in the putative

appellants’ submission to this court provides any imperative reason to justify their

intervention on appeal.

                                       *   *     *

      Turning to the merits, we review the district court’s grant of summary

judgment de novo, applying the same standards as the district court. Garrison v.

Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). Summary judgment is

appropriate if “there is no genuine issue as to any material fact and . . . the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). And

under 42 U.S.C. § 1997e(a), “[n]o action shall be brought with respect to prison

conditions . . . until such administrative remedies as are available are exhausted.”

      Applying those standards, we find no reason to disagree with the thoughtful

analysis of the magistrate judge and district court. 2 The undisputed evidence

clearly demonstrates that Mr. York has failed to exhaust his administrative

remedies. Mr. York presents two arguments seeking to avoid this conclusion, but

he raised neither before the magistrate judge and thus both are waived. See

United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001). And even if

these arguments weren’t waived, they would be unavailing. First, Mr. York



2
    Because Mr. York’s filings in this court were prepared pro se, we afford them
a “solicitous construction.” Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1
(10th Cir. 2007).

                                           -4-
argues that § 1997e does not require exhaustion of administrative remedies when

a prisoner seeks monetary damages. But the Supreme Court has expressly held

otherwise. See Booth v. Churner, 532 U.S. 731, 741 (2001). Second, Mr. York

argues that he attempted to exhaust his administrative remedies but was prevented

from doing so. He has pointed, however, to no evidence to support this assertion.

                                     *     *    *

      For these reasons, we deny the motion to intervene brought by United

Nuwaupians Worldwide, Paralegal Professional Inc., and Yamassee, and we

affirm the district court’s dismissal of Mr. York’s claims.



                                         ENTERED FOR THE COURT



                                         Neil M. Gorsuch
                                         Circuit Judge




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