                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        OCT 29 2003
                                    TENTH CIRCUIT
                                                                   PATRICK FISHER
                                                                             Clerk

 FERNANDO HERRERA,

          Plaintiff - Appellant,
 v.

 COUNTY OF SANTA FE;
 BENJAMIN MONTANO; RAYMOND
 SISNEROS; MARCOS LUCERO;
 RUDY ESTRADA; LAWRENCE
 BARRERAS, individually and in their                  No. 03-2099
 capacity as Wardens, Santa Fe County        (D.C. No. CIV-00-766-BB/DJS)
 Jail; WILFRED ROMERO,                              (D. New Mexico)
 individually and in his capacity as
 Assistant Facility Manager, Santa Fe
 County Jail; JAMES COATS;
 DANIEL BOLTON; SANTA FE
 COUNTY DETENTION CENTER,
 and/or Cornell Corrections, Inc.,
 RONNIE ARMENTA,

          Defendants - Appellees.


                             ORDER AND JUDGMENT *




      *
        After examining 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) and 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Order and Judgment is not binding precedent, except under the doctrines of law of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 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.
Before EBEL, HENRY and HARTZ, Circuit Judges.


      Fernando Herrera, an inmate at the Santa Fe County Detention Center,

brought this action under 42 U.S.C. § 1983 alleging that prison officials used

excessive force against him during an altercation on November 10, 1998, in

violation of his constitutional rights. The district court dismissed his claims

without prejudice because he failed to exhaust administrative remedies as

required by the Prison Litigation Reform Act (PLRA). We AFFIRM.

      Herrera’s complaint arises out of an altercation in which he was shot by a

prison guard with a beanbag round, causing injuries that required three days

hospitalization and that ultimately resulted in the loss of a testicle. 1 Herrera does

not contest that the Santa Fe County Detention Center had a grievance procedure

in place at that time, and that he did not make use of that procedure after the

November 1998 shooting. Instead, he argues that the PLRA’s exhaustion

requirement did not apply to him at the time of that incident, that other grievances

he filed prior to that incident should suffice to satisfy the exhaustion requirement,



      1
         The parties give conflicting reports of the events giving rise to the
November 1998 shooting. According to Herrera, prison guards acted maliciously
for the purpose of punishing, silencing, and demeaning him. In contrast, prison
officials reported that the altercation took place after Herrera assaulted a prison
guard, took the guard’s keys, released another inmate from his cell, seized metal
window covers to use as weapons, threatened other guards, and refused to obey
orders to return to his cell.

                                         -2-
and that the prison’s grievance procedure was not “available” to him in practice

because he was hospitalized after the shooting and later placed in segregation.

The district court properly rejected each of these arguments. 2

      In the PLRA, Congress established that “[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 other correctional facility until

such administrative remedies as are available are exhausted.” 42 U.S.C.

§ 1997e(a). 3 In Porter v. Nussle, the Supreme Court clarified that this exhaustion

requirement applies to all inmate suits about prison life, whether they involve

general circumstances or particular episodes, and whether they allege excessive

force or some other wrong. 534 U.S. 516, 532 (2002).

      The district court correctly declined Herrera’s invitation to ignore the

Supreme Court’s interpretation of the law on the grounds that Nussle was decided


      2
         Although Herrera was represented by counsel at the district court level, he
brings this appeal pro se. Accordingly, we construe his arguments to this court
liberally and hold them to a less stringent standard than formal pleadings drafted
by lawyers. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). We will not,
however, address the arguments Herrera raises for the first time on appeal. See
Creative Gifts, Inc. v. UFO, 235 F.3d 540, 545 (10th Cir. 2000) (“Issues not
raised in the district court are considered on appeal only under exceptional
circumstances or to prevent manifest injustice.”).
      3
         This requirement applies to prisoners like Herrera who are confined in
facilities operated by a private entity on a state’s behalf. See 42 U.S.C.
§ 1997e(a) (the PLRA’s exhaustion requirement applies to prisoners “confined in
any jail, prison, or other correctional facility”).

                                         -3-
after the November 1998 shooting incident. When the Supreme Court applies

federal law to the parties before it, that Court’s interpretation of the law is

controlling and must be given full retroactive effect in all cases still open on

direct review. Harper v. Va. Dept. of Taxation, 509 U.S. 86, 97 (1993); see also

Beaudry v. Corrections Corp. of America, 331 F.3d 1164, 166-67 (10th Cir. 2003)

(applying a Supreme Court decision interpreting the PLRA that was decided while

the case at bar was pending); Yousef v. Reno 254 F.3d 1214, 1221 (10th Cir.

2001) (same). Accordingly, Herrera was required under the PLRA to exhaust his

administrative remedies before bringing this § 1983 action.

      Herrera’s next argument – that he exhausted administrative remedies with

respect to these claims by filing other grievances before the shooting took place –

is meritless. The fact that Herrera complained of abusive treatment in the past

does not excuse his complete failure to take advantage of the prison’s procedures

for redressing any separate claims based on the November 1998 shooting. The

PLRA requires prisoners to exhaust administrative remedies in order to allow

prisons to address specific complaints internally and thus obviate the need for

litigation, to filter out some frivolous claims, and to create an administrative

record that would help resolve complaints that are ultimately brought to court.

Nussle, 534 U.S. at 525. These purposes would be frustrated were we to agree

with Herrera that a prisoner who has previously complained of abuse somehow


                                          -4-
has a free ticket to bring similar complaints in the future based on wholly separate

incidents without complying with the prison’s internal grievance process.

      Finally, we find nothing in the record to support Herrera’s contention that

no administrative remedy was “available” in this case. Although Herrera alleges

that he was hospitalized for three days and later placed in segregation, he does not

explain how this might have prevented him from filing a grievance. Cf. Yousef,

254 F.3d at 1216 (affirming dismissal for failure to exhaust administrative

remedies, though the prisoner was segregated in an isolated soundproof cell).

Although he alleges he was “initially denied access” to standardized grievance

forms with respect to his prior complaints, he admits that he eventually received

those forms and that he has been able to file grievances in the past. Furthermore,

to the extent Herrera argues that the prison’s administrative remedy was not

available because it was unlikely to give him effective relief, the Supreme Court

has already rejected his argument. “All ‘available’ remedies must now be

exhausted; those remedies need not meet federal standards, nor must they be

‘plain, speedy, and effective.’ Even when the prisoner seeks relief not available

in grievance proceedings, notably money damages, exhaustion is a prerequisite to

suit.” Nussle, 534 U.S. at 524 (citation omitted).




                                        -5-
      The judgment of the district court dismissing Herrera’s claims without

prejudice is hereby AFFIRMED. 4



                                     ENTERED FOR THE COURT


                                     David M. Ebel
                                     Circuit Judge




      4
         The district court did not expressly discuss Herrera’s state law claims.
We assume that the court, having dismissed Herrera’s § 1983 claims for failure to
exhaust administrative remedies, declined to exercise supplemental jurisdiction
over any remaining state law claims pursuant to 28 U.S.C. §1367(c)(3) and
therefore dismissed those claims without prejudice. See Erikson v. Pawnee
County Bd. of County Comm’rs, 263 F.3d 1151, 1155 n.6

                                       -6-
