                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        MAR 15 1999
                                  TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                             Clerk

 SCOTT LEE FEVER,
          Plaintiff-Appellant,                          No. 98-3239
 v.                                            (D.C. No. 98-CV-3229-GTV)
 J.W. BOOKER, Warden, United States                      (D. Kan.)
 Penitentiary, Leavenworth; (NFN)
 APPLE, Associate Warden; TORIX,
 Unit Manager; (NFN) SWANSON,
 Counselor; PHILLIP K. HILL, MD;
 LUZ BATTISTA, MD; JUDITH
 THARP, MD; (NFN) DONAVAN,
 PHD; (NFN) SHEPPARD, HSA;
 (NFN) TODD, ASHA; (NFN)
 STOWERS, PA; (NFN) CAMPS, PA;
 (NFN) ACOSTA, PA; (NFN)
 HERNANDEZ, PA; (NFN)
 BERHARE, PA; (NFN) NAVARRO,
 PA; (NFN) CORRAL, PA; JOHN
 DOES; and several unknown Bureau
 of Prisons staff members in their
 individual capacity as defendants,
          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, Circuit Judges.



      *
       This order and judgment is not binding precedent, except under the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.
      After examining Plaintiff-Appellant’s brief 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); 10th Cir. R.

34.1(G). The case is therefore ordered submitted without oral argument.

      Plaintiff Scott Lee Fever, proceeding pro se and in forma pauperis, appeals

the district court’s dismissal of his civil rights action without prejudice for failure

to exhaust administrative remedies. Plaintiff, currently incarcerated in the United

States Penitentiary in Leavenworth, Kansas, brought this action pursuant to

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

(1971). He alleged that he had been denied adequate medical care for his Crohn’s

disease in violation of the Eighth Amendment, had been denied religious freedom

and had suffered retaliatory action in violation of the First Amendment, and had

been subjected to conditions which were not compatible with his physical status

in violation of the Americans with Disabilities Act. He sought both injunctive

relief and money damages from the prison warden, the associate warden, and

numerous counselors, doctors, physician assistants, and other medical and prison

personnel. The district court dismissed the complaint without prejudice because it

found that Plaintiff had failed to exhaust available administrative remedies as

required by 42 U.S.C. § 1997e(a). We exercise jurisdiction pursuant to 28 U.S.C.


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§ 1291.

      On appeal, Plaintiff claims that, in light of our decision in Garrett v. Hawk,

127 F.3d 1263 (10th Cir. 1997), he need not exhaust administrative remedies

because he sought money damages. He also lists several specific grievances that

he allegedly filed and contends that no other administrative grievance procedures

are available to him because the medical and administrative staff of the prison

have blocked them. Finally, Plaintiff requests that he be granted a “change of

venue.” Appellant’s Br. at 4. We review de novo the district court’s dismissal

pursuant to section 1997e(a) for failure to exhaust administrative remedies. See

Garrett, 127 F.3d at 1264.

      Because Plaintiff filed his complaint on July 10, 1998, it is governed by the

requirements of 42 U.S.C. § 1997e(a), as amended by the Prison Litigation

Reform Act of 1995, Pub. L. No. 104-134, § 803, 110 Stat. 1321 (Apr. 26, 1996).

The statute provides that “[n]o action shall be brought with respect to prison

conditions under section 1983 . . . , or any other Federal law, by a

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

42 U.S.C. § 1997e(a). In Garrett, we held that this exhaustion requirement is

generally mandatory. See Garrett, 127 F.3d at 1265. We also determined,

however, that prisoners who file Bivens claims for monetary damages against

prison officials were not required to exhaust administrative remedies under the


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PLRA “because no such remedies exist to be exhausted.” Id. at 1267. But see

Alexander v. Hawk, 159 F.3d 1321, 1328 (11th Cir. 1998) (holding that prisoner

seeking injunctive and monetary relief is required to comply with the PLRA’s

mandatory exhaustion requirement).

      In this case, the district court did not distinguish between Plaintiff’s

monetary and injunctive claims. Applying the principle in Garrett set forth above,

we conclude that the district court erred in dismissing the Bivens claim for

monetary damages. Accordingly, we reverse the dismissal without prejudice of

Plaintiff’s claim for monetary damages. See Florence v. Booker, 161 F.3d 17,

1998 WL 694521 (10th Cir. 1998) (Table).

      With respect to Plaintiff’s claim for injunctive relief, administrative

remedies are available to him. See 28 C.F.R. § 542 (1998). On appeal, Plaintiff

explains that he has filed various administrative grievances. Because Plaintiff

sets forth these specific grievance filings for the first time on appeal, and because

the district court has not assessed whether these alleged grievance filings satisfy

the exhaustion requirement, we cannot determine whether the court’s dismissal

for failure to exhaust was proper. Accordingly, we reverse the dismissal of the

claims for injunctive relief and remand so that the district court may assess

whether the alleged grievance filings satisfy the exhaustion requirement.

      In sum, we REVERSE the dismissals without prejudice of Plaintiff’s claims


                                          -4-
for monetary damages and injunctive relief and REMAND for further proceedings

consistent with this Order. We also deny Plaintiff’s request for a change of

venue.

      REVERSED and REMANDED.

                                              Entered for the Court



                                              Monroe G. McKay
                                              Circuit Judge




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