                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                        MAY 22 2003
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


 MARVIN SEEGARS,

             Plaintiff - Appellant,
                                                        No. 03-6032
 v.                                              (D.C. No. 02-CV-735-HE)
                                                     (W.D. Oklahoma)
 RON J. WARD

             Defendant - Appellee.




                          ORDER AND JUDGMENT *


Before EBEL, HENRY, and HARTZ, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not aid in the disposition of this appeal.

See Fed. R. App. P. 34(a)(2)(C). 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        This order and judgment is not binding precedent, except under the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.
      Marvin Seegars, a prisoner in the custody of the Oklahoma Department of

Corrections, filed this pro se 42 U.S.C. § 1983 action alleging that amendments to

Oklahoma statutes have delayed his consideration for parole, thereby violating the

Ex Post Facto Clause of the United States Constitution. Mr. Seegars sought a

declaratory judgment and an injunction directing prison officials to promulgate

rules and regulations regarding parole procedures. In his complaint, Mr. Seegars

acknowledged that he had not pursued administrative remedies, but he contended

that to do so would be futile.

      The district court adopted the report and recommendation of the magistrate

judge and dismissed the complaint without prejudice, reasoning that Mr. Seegars

had failed to exhaust administrative remedies. The court noted that the Prison

Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), contains an exhaustion

requirement and that “courts cannot excuse the exhaustion of administrative

remedies even if exhaustion would arguably be futile.” Rec. doc. 21, at 3 (Dist.

Ct. Order, filed Jan. 13, 2003) (citing Porter v. Nussle, 534 U.S. 516, 524 (2002)

and Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002)).

      We agree with this analysis. Accordingly, for substantially the same

reasons set forth in the magistrate’s report and recommendation and the district




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court’s order, we AFFIRM the district court’s dismissal of Mr. Seegars’

complaint without prejudice.

                               Entered for the Court,



                                Robert H. Henry
                                Circuit Judge




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