                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         FEB 17 2005
                                    TENTH CIRCUIT
                                                                   PATRICK FISHER
                                                                             Clerk

 DAVID L. HILLIARD,

          Plaintiff - Appellant,

 v.
                                                       No. 04-7090
 CHARLES RAY, Warden; JOE                        (D.C. No. 02-CV-393-S)
 CROW; CORRECTIONAL                                    (E.D. Okla.)
 CORPORATION OF AMERICA;
 ROBERT B. EZEL; STEVEN
 KAISER, previous warden,

          Defendants - Appellees.


                             ORDER AND JUDGMENT *


Before EBEL, MURPHY and McCONNELL, Circuit Judges.


      Plaintiff-Appellant David L. Hilliard, proceeding pro se, commenced this

42 U.S.C. § 1983 action alleging Corrections Corporation of America and its

named employees (collectively “Defendants”) violated Hilliard’s Eighth


      *
        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Order and Judgment is not binding precedent, except under the doctrines of law of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.
Amendment right to be free from cruel and unusual punishment. The district

court granted summary judgment in favor of the Defendants, dismissing Hilliard’s

complaint for failure to exhaust his prison administrative remedies as required

under 42 U.S.C. § 1997e. Hilliard appeals 1 and, exercising jurisdiction pursuant

to 28 U.S.C. § 1291, we AFFIRM the district court.

      Hilliard is an inmate in the custody of the Oklahoma Department of

Corrections. He is housed at the Davis Correctional Facility, which is operated by

the Corrections Corporation of America. In this civil rights action, Hilliard

alleges that he needed certain medically appropriate boots in order to complete his

job assignment. He claims Defendants denied him these boots, which ultimately

caused him to slip and fall while working. Plaintiff asserts he suffers back and

other injuries as a result of this fall and has not received proper medical

treatment. He seeks proper medical treatment, compensatory damages, punitive

damages, and a jury trial. The district court granted summary judgment in

Defendants’ favor because Hilliard “failed to make any viable argument that he

has exhausted his administrative remedies” and “cited no authority or facts to

demonstrate he was denied access to those administrative procedures.”




      1
       We grant Appellant’s motion to proceed in forma pauperis. See 28 U.S.C.
§ 1915. Appellant is reminded he must continue making partial payments until
the entire court fees and costs previously assessed are paid in full.

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      We review the district court’s summary judgment decision de novo,

considering the evidence in the light most favorable to the nonmoving party. See

Olsen v. Layton Hills Mall, 312 F.3d 1304, 1311 (10th Cir. 2002). Summary

judgment is appropriate only “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with affidavits, if any, show that

there is no genuine issue as to any material fact and . . . the moving party is

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

      The Prison Litigation Reform Act provides that an inmate must exhaust

administrative procedures before bring a § 1983 action “with respect to prison

conditions.” 42 U.S.C. § 1997e(a). This exhaustion requirement exists regardless

of whether the suit involves “general circumstances or particular episodes” or

whether the available remedies appear able to provide the relief sought. Porter v.

Nussle, 534 U.S. 516, 532 (2002); Booth v. Churner, 532 U.S. 731, 741 (2001).

      In order to exhaust administrative procedures, the inmate must “go beyond

the first step.” Booth, 532 U.S. at 735. Instead, the inmate must see the

grievance process—even if it appears futile—to its conclusion. Jernigan v.

Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). The doctrine of substantial

compliance does not apply, and there is no exception for when the inmate failed

to cure a procedural deficiency or neglected to employ available internal

processes before the time expired for pursuing them. Id. at 1032-33.


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      The Davis Correctional Facility’s formal grievance policy requires an

inmate to file a grievance (a “written complaint”) within seven days of an alleged

incident, and the grievance officer must investigate and render a decision within

fifteen days. Then, the inmate “is to submit any appeal to the

Warden/Administrator or designee within five (5) days of receiving the decision

from the Grievance Officer” and the “Warden/Administrator will render a written

decision on the grievance appeal within fifteen (15) days of receipt from the

inmate/resident.”

      The record reveals that Hilliard submitted two relevant grievances prior to

filing this action. First, he filed a grievance about falling while working and

received a grievance officer’s decision within a week. Hilliard never formally

appealed this to the Warden. Second, he filed a grievance a little over two

months later, complaining of related medical problems. This grievance was

returned to Hilliard for failure to comply with filing requirements. He was given

ten days to remedy these errors but never re-submitted this grievance. Thus,

Hilliard has not seen either of these grievances to their conclusion. See Jernigan,

304 F.3d at 1032. Accordingly, we affirm the district court’s determination that

Hilliard “simply failed to exhaust his administrative remedies.”

      On appeal, Appellant argues that exhaustion of Oklahoma’s Prisoners

Grievance System is not required of him under 42 U.S.C. § 1997e. However, we


                                        -4-
note that Appellant cites the pre-1996 version of this statute for this argument,

and in the current § 1997e, Congress “eliminated both discretion to dispense with

administrative exhaustion and the condition that it be plain, speedy, and

effective.” Jernigan, 304 F.3d at 1032. Accordingly, “exhaustion is now

mandatory” for all “available” internal remedies. Id.

      Appellant also argues that he should be excused from the exhaustion

requirement of § 1997e. He asserts that the internal prison procedures were

unavailable to him at the time he filed his civil action because the seven-day

period for filing prison grievances had expired. However, these internal

procedures were available to Hilliard at the time of the alleged incidents, and his

failure to employ them in a timely manner does not excuse his failure to exhaust

under § 1997e(a). See id. at 1032-33.

      Therefore, for the foregoing reasons, we AFFIRM the district court’s grant

of summary judgment for Defendants. We GRANT Plaintiff’s Motion to Dismiss

his Pre-Emptive Objection and, per his request, do not consider that objection on

appeal. We also GRANT Plaintiff’s Motion to Amend the Opening Brief and

construe his Objection to Defendants’ Answer Brief as a timely filed reply brief.


                                        ENTERED FOR THE COURT


                                        David M. Ebel
                                        Circuit Judge

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