                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       June 26, 2009
                   UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                TENTH CIRCUIT



 CHARLES MOORE,

              Plaintiff - Appellant,                     No. 08-7112
 v.                                                    (E.D. Oklahoma)
 JUSTIN JONES, Director; RANDALL             (D.C. No. 07-CV-00062-RAW-SPS)
 WORKMAN, Warden; LIEUTENANT
 HANCOCK; RANDY RODEN, Tower
 #5 Officer,

              Defendants - Appellees.


                           ORDER AND JUDGMENT *


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.



      After examining the appellate briefs and the appellate record, this court has

determined unanimously that oral argument would not materially assist the

determination 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.




      *
        This order and judgment is not binding precedent except under the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.
      Proceeding pro se, Oklahoma state prisoner Charles Moore appeals the

district court’s dismissal of the civil rights complaint he brought pursuant to 42

U.S.C. § 1983. The claims asserted in Moore’s complaint arose from an incident

in which Moore was assaulted by several other inmates. Moore alleged violations

of his Eighth and Fourteenth Amendment rights in connection with the incident.

Defendants moved to dismiss Moore’s complaint, arguing, inter alia, that he

failed to exhaust his administrative remedies. The district court granted the

motion and Moore appeals.

      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

“available” administrative remedies be exhausted prior to filing a § 1983 action

with respect to prison conditions. 42 U.S.C. § 1997e(a). The record contains a

copy of an inmate grievance report form signed by Moore and dated November

10, 2006. On December 12, 2006, Moore submitted a Request to Staff inquiring

about the status of his grievance. In response, Moore was advised that the

Oklahoma State Penitentiary had no record of his grievance. He then submitted

the grievance to the Oklahoma Department of Corrections. The grievance was

returned to Moore on January 11, 2007, with instructions to resubmit it to the

facility head. There is no evidence in the record that the grievance was

resubmitted or that Moore pursued any other administrative remedy.

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      In Jernigan, this court 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.” Id. By not

resubmitting his grievance as instructed, Moore failed to employ the

administrative remedies available to him. See id. at 1032-33.

      The district court’s judgment dismissing Moore’s complaint without

prejudice is affirmed. Moore’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).

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




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