                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 December 8, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 CESAR CUBA GARCIA,

               Plaintiff - Appellant,                     No. 10-2143
          v.                                            (D. New Mexico)
 DR. JOSEPH; VISTULA CURRY, Lt.;             (D.C. No. 2:07-CV-00643-RB-WDS)
 DR. BROWN; JODIE BROWN, Deputy
 Warden, Penitentiary of New Mexico;
 WALTER COOPER, Warden,
 Guadalupe County Correctional
 Facility; STANLEY MOYA, Warden,
 Penitentiary of New Mexico; MANUEL
 PACHECO, Deputy Warden,
 Penitentiary of New Mexico; JOHNNY
 ARIAS, Unit Manager, Penitentiary of
 New Mexico; LILIAN CHUMBLEY;
 RUDY GONSALES,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      After examining the appellate briefs and the appellate record, this court has

determined unanimously that oral argument would not materially assist the

resolution 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.

      Proceeding pro se, New Mexico state prisoner Cesar Cuba Garcia appeals

the district court’s dismissal of the civil rights complaint he brought pursuant to

42 U.S.C. § 1983. Garcia’s amended complaint was filed on September 13, 2007,

and included claims against ten defendants. Eight of the defendants were

identified as employees of the Guadalupe County Correctional Facility in Santa

Rosa, New Mexico (the “Santa Rosa Defendants”). The remaining two

defendants, Drs. Joseph and Brown (the “Los Lunas Defendants”), were employed

in the Mental Health Treatment Center at the Central New Mexico Correctional

Facility in Los Lunas, New Mexico. Garcia alleged that one of the Santa Rosa

Defendants, Lieutenant Vistula Curry, sexually harassed him and the remaining

Santa Rosa Defendants retaliated against him for pursuing claims against Curry.

Garcia also alleged the Los Lunas Defendants interfered with his right to access

the courts and were deliberately indifferent to his medical needs, all in violation

of his First, Eighth, and Fourteenth Amendment rights.

      The Santa Rosa Defendants moved to dismiss Garcia’s complaint, arguing,

inter alia, that he failed to exhaust his administrative remedies. The district court

granted the motion and dismissed Garcia’s complaint without prejudice. The Los

                                          -2-
Lunas Defendants were not served with process. The district court, however,

dismissed Garcia’s claims against the Los Lunas Defendants, concluding Garcia’s

complaint failed to state a claim on which relief could be granted. See 28 U.S.C.

§ 1915(e)(2)(B). Garcia appeals the dismissal of all claims. 1

      This court conducts a de novo review of a dismissal for failure to exhaust

administrative remedies. See Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th

Cir. 2002). The Prison Litigation Reform Act (“PLRA”), requires that a prisoner

exhaust available administrative remedies prior to filing a § 1983 action with

respect to prison conditions. 42 U.S.C. § 1997e(a). This court has held that “[a]n

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

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

remedies.” Jernigan, 304 F.3d at 1032; see also Jones v. Bock, 549 U.S. 199, 218

(2007) (“[T]o properly exhaust administrative remedies prisoners must complete

the administrative review process in accordance with the applicable procedural

rules . . . .” (quotation omitted)). There is evidence in the record that

administrative remedies were available to Garcia but he failed to pursue any


      1
        Garcia’s appellate brief does not specifically identify the issues he seeks to
appeal or contain any focused argument challenging the conclusions reached by
the district court. Because Garcia is proceeding pro se, we construe his brief
liberally and “have tried to discern the kernel of the issues [he] wishes to present
on appeal.” de Silva v. Pitts, 481 F.3d 1279, 1283 n.4 (10th Cir. 2007). We do
not, however, “take on the responsibility of serving as [Garcia’s] attorney in
constructing arguments and searching the record.” Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

                                          -3-
remedy to completion. Thus, the district court correctly concluded Garcia failed

to employ the administrative remedies available to him with respect to the claims

asserted against the Santa Rosa Defendants in his complaint. See id. at 1032-33.

The district court’s judgment dismissing Garcia’s claims against the Santa Rosa

Defendants without prejudice is affirmed.

      A district court’s decision to dismiss a prisoner’s complaint pursuant to

§ 1915(e)(2)(B) for failure to state a claim is reviewed de novo. See Kay v.

Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). For substantially the same reasons

stated by the district court, we conclude Garcia’s complaint fails to state a

plausible claim for relief against the Los Lunas Defendants. See id. at 1218.

Accordingly, the district court’s judgment dismissing the claims against the Los

Lunas Defendants with prejudice is affirmed.

      Garcia’s application to proceed in forma pauperis on appeal is granted, but

he is reminded he remains obligated to continue making partial payments until his

appellate filing fee is paid in full. See 28 U.S.C. § 1915(b). All other

outstanding motions are denied.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




                                         -4-
