                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          DEC 12 2003

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 ISAIAS MENDOZA,

          Plaintiff-Appellant,

 v.

 JANE JOE, Unit Manager; JULIAN
 PADILLA, Correctional Officer,
 Cibola County Correctional Center;
 DARLENE VALLEY, Assistant Shift
                                                        No. 03-2113
 Commander; ADELIO GALLEGOS,
                                                  (D.C. No. CIV-02-1611)
 JR., Shift Supervisor; NIKKI
                                                      (New Mexico)
 DILLON, Medical Administrator,
 Cibola County Correctional Center;
 GARLAND JEFFERS, Warden, Cibola
 County Correctional Center, in their
 individual and official capacities;
 DON RUSSELL, Grievance Officer;
 MR. LEE, Senior Officer, Cibola
 County Correctional Center,

          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 submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.


      Isaias Mendoza brought a civil rights complaint against various employees

of the New Mexico correctional facility in which he was housed. He alleged

violations of the Eighth and Fourteenth Amendments, stemming from a) a

confrontation with a prison employee, b) his placement in segregation without the

opportunity to make a statement or cross-examine witnesses, and c) the facility’s

failure to treat a back injury sustained while employed as a masonry instructor

within the prison. The district court dismissed Mr. Mendoza’s claims without

prejudice for failure to exhaust administrative remedies. We affirm.

      The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), requires

prisoners to exhaust “available” administrative remedies prior to initiating

litigation concerning the conditions of their confinement. The apparent futility of

those remedies does not obviate the need to exhaust them. Jernigan v. Stuchell,

304 F.3d 1030, 1032 (10th Cir. 2002). Therefore, Mr. Mendoza’s assertion that

he attempted to exhaust his administrative remedies does not save him from the

dismissal without prejudice issued by the district court.

      On appeal, Mr. Mendoza argues the PLRA does not apply in his case–one

against a private correctional facility. This contention is without merit. In


terms and conditions of 10th Cir. R. 36.3.

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Jernigan, the court dismissed a claim against the same private company Mr.

Mendoza is suing on the ground that the plaintiff in that case failed to exhaust

administrative remedies pursuant to the PLRA. Id. at 1033. See also Herrera v.

County of Santa Fe, 213 F. Supp. 2d 1288, 1293 (D. N.M. 2002) (holding PLRA

exhaustion requirements apply to private entities). The district court’s dismissal

without prejudice was proper. We GRANT Mr. Mendoza’s motion to proceed in

forma pauperis and AFFIRM the district court’s dismissal of Mr. Mendoza’s

claims.

                                               ENTERED FOR THE COURT


                                               Stephanie K. Seymour
                                               Circuit Judge




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