                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                   UNITED STATES COURT OF APPEALS                   October 19, 2010
                                                                  Elisabeth A. Shumaker
                                TENTH CIRCUIT                         Clerk of Court



 RYAN J. GRIFFIN,

              Plaintiff-Appellant,                       No. 10-2138
 v.                                                      (D. of N.M.)
 SERGEANT ROBERT ROMERO,                     (D.C. No. 1:09-CV-00513-WJ-RLP)

              Defendant-Appellee.


                           ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges. **


      Ryan James Griffin, a federal prisoner proceeding pro se and in forma

pauperis, 1 appeals the district court’s dismissal without prejudice of his 42 U.S.C.

§ 1983 civil rights complaint for failure to exhaust available administrative

remedies.


      *
         This order and judgment is not binding precedent except under the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 briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      1
       Because Griffin is proceeding pro se, we construe his filings liberally.
See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).
      We have jurisdiction pursuant to 28 U.S.C. § 1291 and we AFFIRM.

                                  I. Background

      Griffin, a New Mexico prisoner in the custody of the Taos County Adult

Detention Center (TCDC) at the time of the incident in question, filed a pro se

§ 1983 complaint in May 2009 against Sgt. Robert Romero, a correctional officer

at TCDC. Griffin alleged TCDC detention officers incarcerated him in an illegal-

sized cell without water access or proper toilet facilities. He also averred they

denied him exercise, daily showers, visitation privileges, mail, phone calls, and

access to an attorney.

      Griffin acknowledged in his complaint that he did not seek formal relief

from the appropriate administrative officials regarding the alleged constitutional

infringements. Rather, he contended either TCDC lacked a formal grievance

procedure or TCDC detention officers “denied it to [him] when asked” by saying

“the head administrator was sick. R. Doc. 1 at 5.

      Before ruling on the exhaustion issue, the district court ordered Romero to

file a Martinez report to investigate the incidents forming the basis of Griffin’s

complaint. See Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir. 1978) (holding

that a report may be necessary to determine certain preliminary issues). The

Martinez report included copies of TCDC’s grievance form and procedures and an

affidavit by Romero stating (1) Griffin never requested a grievance form from

him, (2) he is not aware of Griffin requesting a grievance form from any other

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detention officer, (3) the record does not indicate Griffin filed any grievance

forms, (4) Griffin’s counsel did not complain about the conditions of

confinement, and (5) Griffin was never denied access to his mail or any requested

legal materials.

         The magistrate judge filed a report and recommendation that the complaint

be dismissed without prejudice for failure to exhaust administrative remedies.

The district court adopted the report and recommendations after determining

Griffin’s objections lacked merit.

                                     II. Analysis

         “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).

         Griffin contends the district court erred in dismissing the complaint because

the alleged conditions of his incarceration (“no toilet, no water, no nothing”)

prevented him from exhausting his administrative remedies. Aplt. Br. at 3.

Griffin also claims TCDC lacks an “available” grievance procedure, as evinced by

the (alleged) fact that Griffin’s repeated requests to speak with an administrator

were denied. Aplt. Reply Br. at 2. Finally, Griffin argues the Prison Litigation

Reform Act of 1995 (PLRA) does not require a person who already has been




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released from the custody of a detention facility 2 to exhaust administrative

remedies prior to bringing a civil lawsuit.

      Pursuant to the PLRA, prisoners bringing suit under § 1983 must first

exhaust available administrative remedies before seeking relief in federal court.

See 42 U.S.C. § 1997e(a) (“No 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.”). This exhaustion requirement is

mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002) (“All available remedies

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

they be plain, speedy, and effective.”) (quotations omitted). The Supreme Court

has stressed, “we will not read futility or other exceptions into [PLRA’s] statutory

exhaustion requirement[ ].” Booth v. Churner, 532 U.S. 731, 741 n.6 (2001).

      “Section 1997e(a) says nothing about a prisoner’s subjective beliefs, logical

or otherwise, about the administrative remedies that might be available to him.

The statute’s requirements are clear: If administrative remedies are available,

the prisoner must exhaust them.” Chelette v. Harris, 229 F.3d 684, 688 (8th Cir.


      2
        TCDC is a small detention center that typically sends its inmates to
Cibola County, San Miguel County, or Santa Fe County for housing after 72
hours. But these three counties initially refused to house Griffin due to his escape
attempts, alleged bad behavior when previously incarcerated in San Miguel
County, and overcrowding. After about one month’s detention at TCDC, Santa Fe
County finally accepted Griffin and he was transferred there in October 2008.

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2000). “Congress intended to save courts from spending countless hours,

educating themselves in every case, as to the vagaries of prison administrative

processes, state or federal” and “did not intend for courts to expend scarce

judicial resources examining how and by whom a prison’s grievance procedure

was implemented.” Concepcion v. Morton, 306 F.3d 1347, 1354 (3d Cir. 2002)

(quotation omitted).

       Griffin no longer disputes, as he did below, that TCDC has a written

grievance procedure. Instead, he argues TCDC detention officers did not make

the process available to him. But the record does not demonstrate and Griffin

does not claim he ever requested a grievance form or otherwise submitted his

grievance in writing, although he was able to submit a written request for

medication and reading materials from his family during that time. Although

Griffin claims he repeatedly asked to speak with an administrator, giving notice

of claims by means other than a prison’s available grievance process does not

satisfy PLRA’s exhaustion requirements. See Jernigan, 304 F.3d at 1032.

      Similarly, Griffin does not claim he was unable to seek an administrative

remedy at TCDC after being sent to another detention facility. Instead, he argues

properly filing a grievance would be pointless because it would not “reap [him

the] benefit of the grievance outcome.” Aplt. Reply Br. at 3. But futility is not

an excuse to the PLRA’s exhaustion requirement. See Booth, 532 U.S. at 741 n.6.




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                                  III. Conclusion

      The judgment of the district court is AFFIRMED. Griffin’s motion to

proceed in forma pauperis is GRANTED, but he is reminded that he is obligated

to continue making partial payments until the entire $455 filing fee is paid in full.

                                                    Entered for the Court

                                                    Timothy M. Tymkovich
                                                    Circuit Judge




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