                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                           August 21, 2006
                                   TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                             Clerk of Court


 JO SEPH R. PH ILLIPS-B EY ,

                Plaintiff-Appellant,                        No. 06-6022
           v.                                            (W .D. Oklahoma)
 CLIFFORD BARNARD, Unit                             (D.C. No. 04-CV-1116-M )
 M anager; R ON CH A MPIO N ,
 W arden of Security; and M R.
 DORAW ASS, Institutional
 Property Room Supervisor,

                Defendants-Appellees.



                             OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




       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 F ED . R. A PP . P. 34( A )(2); 10 TH C IR . 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        This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Joseph R. Phillips-Bey, an Oklahoma state prisoner proceeding pro se,

appeals the district court’s dismissal of his claims, which alleged under 42 U.S.C.

§ 1983 that the prison official-defendants: (1) violated his First Amendment right

to free exercise of religion and discriminated against him because of his religion,

in violation of the Equal Protection Clause of the Fourteenth Amendment; (2)

failed to provide him an opportunity to be heard w ith respect to a disciplinary

hearing and refused to return an allegedly confiscated radio, in violation of the

Due Process Clause of the Fourteenth Amendment; and (3) forced him to remain

in protective custody, in violation of the Eighth A mendment. W e exercise

jurisdiction pursuant to 28 U.S.C. § 1291, and affirm the district court’s dismissal

without prejudice for failure to exhaust administrative remedies as required by 42

U.S.C. § 1997e(a).

                                I. BACKGROUND

      M r. Phillips-Bey alleges various constitutional violations that arise out of

distinct events. W ith respect to his first claim, abridgement of his First

Amendment right to free exercise of religion and his Fourteenth Amendment right

to equal protection, M r. Phillips-B ey contends that he was denied the opportunity

for fellowship with other M uslims, and that the defendants did not allow him “to

receive Islamic reading materials or prayer rugs and headdress materials.” A plt’s

Br. at 3. Additionally, he alleges that he was treated differently from other

similarly-situated inmates who were permitted to exercise their religion.

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      Regarding his second claim, alleging violations of his Fourteenth

Amendment Due Process rights, M r. Phillips-B ey contends that prison officials

violated his due process rights by failing to provide him adequate notice and a

hearing regarding disciplinary charges and by refusing to return a radio they had

confiscated from his cell.

      Finally, with respect to his third claim, M r. Phillips-Bey alleges that prison

officials violated his Eighth Amendment right to be free from cruel and unusual

punishment by transferring him to protective custody and out of the general

prison population.

      In a thorough report and recommendation, the magistrate judge

recommended dismissal of all claims, finding that M r. Phillips-B ey had failed to

state a claim upon which relief could be granted and that he had also failed to

exhaust all available administrative remedies. The district court adopted the

report and recommendation, and dismissed M r. Phillips-Bey’s complaint without

prejudice under 42 U.S.C. § 1997e(a). This appeal followed.

                                 II. D ISC USSIO N

      W e review de novo a district court’s dismissal of a complaint for failure to

state a claim. M artinez v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005). W e

also review de novo a district court’s dismissal of a complaint for failure to

exhaust administrative remedies. Patel v. Fleming, 415 F.3d 1105, 1108 (10th

Cir. 2005). W e accept the allegations in the complaint as true, and make all

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reasonable factual inferences in M r. Phillips-Bey’s favor. M artinez, 430 F.3d at

1304. Additionally, we must construe his arguments liberally because he is pro

se. Haines v. Kerner, 404 U.S. 519, 520 (1972).

        Although the magistrate judge and district court examined whether M r.

Phillips-B ey had stated a claim for relief, as well as whether he had properly

exhausted his administrative remedies, “we may affirm on any grounds supported

by the record.” Duncan v. Gunter, 15 F.3d 989, 991 (10th Cir. 1994). The Prison

Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought with

respect to prison conditions under section 1983 of this title . . . until such

administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).

The prisoner must exhaust all administrative remedies available even if

administrative procedures “would appear to be futile at providing the kind of

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

      W e agree with the magistrate judge and the district court that M r. Phillips-

Bey failed to exhaust his administrative remedies with respect to at least one of

his claims. The Oklahoma Department of Corrections (“ODOC”) has outlined a

multi-step process inmates must use to exhaust their administrative remedies. See

ODOC Policy OP-090124. A prisoner must first file a Request to Staff within

seven days of the incident. Id. OP-090124(IV ). If the prison’s response is

unsatisfactory or if the prisoner does not receive a response within 30 days, the

prisoner must file a Grievance Report Form. Id. OP-090124 (IV)(B)(5); OP-

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090124(V ).

      W ith respect to M r. Phillips-B ey’s first claim, that prison officials

prevented him from exercising his First Amendment rights, the record contains

numerous Requests to Staff alleging that various officials were denying him the

ability to practice his religion. See, e.g., Rec. doc. 31, Attach. B, at 5 (Request to

Staff, dated Dec. 17, 2003). However, M r. Phillips-Bey never submitted a

G rievance R eport Form on this issue, as required by the ODOC policies. “An

inmate who begins the grievance process but does not complete it is barred from

pursuing a § 1983 claim under PLRA for failure to exhaust his administrative

remedies.” Jernigan, 304 F.3d at 1032.

      M r. Phillips-Bey contends on appeal that the district court erred by

dismissing the entirety of his complaint, rather than deciding “to grant [the

defendants’ motion to dismiss] in part and deny [it] in part,” Aplt’s Br. at 3. H e

maintains that he did, in fact, exhaust his administrative remedies with respect to

his due process claims.

      M r. Phillips-Bey is simply mistaken about the law in this circuit: when a

prisoner chooses to bring multiple claims regarding prison conditions, “§

1997e(a) requires that all available prison grievance remedies must be exhausted

as to all of the claim s. . . . [T]he presence of unexhausted claims . . . require[s]

the district court to dismiss [an] action in its entirety without prejudice.” Ross v.

County of Bernalillo, 365 F.3d 1181, 1188-89 (10th Cir. 2004) (internal quotation

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marks omitted) (emphasis added); see also Patel, 415 F.3d at 1109 (“‘W hen

multiple prison condition claims have been joined . . . § 1997e(a) requires that all

available prison grievance remedies must be exhausted as to all of the claims.’”

(quoting Graves v. Norris, 218 F.3d 884, 885 (8th Cir. 2000) (per curiam))).

                                III. C ON CLU SIO N

      Because M r. Phillips-B ey failed to exhaust his administrative remedies with

respect to at least one of his claims, we AFFIRM the district court’s dismissal of

the entirety of his complaint without prejudice. W e grant M r. Phillips-Bey’s

motion to pay his filing fee in partial payments and remind him of this continuing

obligation.


                                              Entered for the Court


                                              Robert H. Henry
                                              Circuit Judge




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