                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                          DEC 1 2004
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT                        PATRICK FISHER
                                                                              Clerk


 GUILLERMO BARRON-BACA,

            Plaintiff - Appellant,

 v.
                                                       No. 04-1150
                                                (D.C. No. 02-N-2274 (PAC))
 JANNIE SHOEMAKER, Warden,
                                                   (District of Colorado)
 D.R.D.C.; ANITA BLOOR, Health
 Provider, D.R.D.C.; JANETTE
 LINDSAY, Health Provider, D.R.D.C.,

            Defendants - Appellees.


                           ORDER AND JUDGMENT *


Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.



      Guillermo Barron-Baca appeals the district court’s dismissal of his § 1983

suit alleging Eighth Amendment violations by prison officials. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.



      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
      Barron-Baca, an inmate proceeding pro se, alleges that the defendants were

deliberately indifferent to his serious medical needs, in contravention of the

Eighth Amendment, by failing to provide him with an elbow splint and physical

therapy in a timely manner. On June 8, 2000, Barron-Baca underwent surgery on

his left elbow and received doctor’s orders recommending a splint and physical

therapy. Defendants allegedly failed to provide the splint until mid-August 2000,

and did not schedule physical therapy until mid-July 2000. Barron-Baca’s doctor

told him on December 6, 2000 that he would not regain full movement in his

elbow.

      On October 16, 2002, nearly two years later, Barron-Baca initiated a Step I

grievance seeking “monetary compensation in the maximum allowable amount

under the law.” Because Barron-Baca failed to file the grievance within “thirty

(30) calendar days from the date the offender knew or should have known of the

facts giving rise to the grievance,” Colo. Dep’t Corrections Admin. Reg. § 850-

04, IV.C.2a, his grievance was rejected. The grievance regulations permit certain

prison officials to grant an extension when the “offender clearly demonstrates that

it was not feasible to file within the initial period.” Id. at IV.C.2b. Barron-Baca

never attempted to demonstrate that it was infeasible for him to file his grievance

in a timely manner.

      Barron-Baca then sued in district court seeking relief under § 1983.


                                          2
Because Barron-Baca failed to exhaust administrative remedies under the Prison

Litigation Reform Act (“PLRA”), the court below dismissed his suit with

prejudice; Barron-Baca appeals. “We review de novo the district court’s finding

of failure to exhaust administrative remedies.” Jernigan v. Stuchell, 304 F.3d

1030, 1032 (10th Cir. 2002).

      Pursuant to 42 U.S.C. § 1997e, “[n]o action shall be brought with respect to

prison conditions under [§ 1983], 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.” “[A] complaint that fails to allege the requisite

exhaustion of remedies is tantamount to one that fails to state a claim upon which

relief may be granted.” Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1210

(10th Cir. 2003) (quotation omitted).

      On appeal, Barron-Baca argues that the PLRA requires inmates to exhaust

only those administrative remedies that are available to them; because he filed his

first grievance late, no administrative remedies were available at that time.

Therefore, Barron-Baca urges this court to excuse his failure to complete the

internal grievance process. Our decision in Ross v. County of Bernalillo, 365

F.3d 1181 (10th Cir. 2004) forecloses Barron-Baca’s argument. In Ross, we

concluded that “[a]llowing prisoners to proceed to federal court simply because

they have filed a time-barred grievance would frustrate the PLRA’s” policy goals.


                                           3
Id. at 1186. Accordingly, we held that “[a] prison procedure that is procedurally

barred and thus is unavailable to a prisoner is not thereby considered exhausted.

Regardless of whether a prisoner goes through the formality of submitting a

time-barred grievance, he may not successfully argue that he had exhausted his

administrative remedies . . . .” Id. (citation omitted). Therefore, the district court

correctly concluded that Barron-Baca failed to exhaust administrative remedies by

not filing his grievance in a timely manner, and properly dismissed his

complaint. 2

      Finally, Barron-Baca argues that the district court erred by dismissing his

complaint with prejudice. We have held that “[i]f a prisoner does submit a

complaint containing one or more unexhausted claims, the district court ordinarily

must dismiss the entire action without prejudice.” Id. at 1190 (emphasis added).

Because Barron-Baca filed his complaint on the day before the statute of

limitations expired, even if the court dismissed his complaint without prejudice,

Barron-Baca could not re-file his § 1983 suit within the statutory period.


      2
         In his reply brief, Barron-Baca argues that prison officials failed to supply
him with a Spanish language explanation of the grievance procedure which, as a
non-English speaker, left him ignorant of the relevant requirements. He did not
raise this argument below and mentions it for the first time in his reply brief.
Except in extraordinary circumstances, this court will not consider an issue that
was not before the trial court. In re Walker, 959 F.2d 894, 896 (10th Cir. 1992).
Additionally, failure to raise an issue in the opening appellate brief waives that
issue. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir.
1994). Therefore, we decline to consider this argument.

                                           4
Therefore, any alleged error by the district court is harmless. 3

      Accordingly, we AFFIRM the district court’s order dismissing Barron-

Baca’s complaint. We remind Mr. Barron-Baca that he must continue his

payments until his fee is paid in full.

                                          ENTERED FOR THE COURT



                                          Carlos F. Lucero
                                          Circuit Judge




      3
        The court below concluded pursuant to 28 U.S.C. § 1915(a)(3) that this
appeal is frivolous and not taken in good faith. At the time the court below
issued its order dismissing Barron-Baca’s complaint, we had not yet decided
whether an untimely-filed grievance constituted failure to exhaust administrative
remedies. Therefore, we conclude that Barron-Baca brought this non-frivolous
appeal in good faith.

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