                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           AUG 30 2004
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 ORLEY KIM BROCK,

               Plaintiff - Appellant,

          v.                                            No. 04-1172
                                                    (D. Ct. No. 04-Z-34)
 JOE ORTIZ; MS. JUDY BULLARD;                            (D. Colo.)
 DR. (FNU) SINGH; DR. (FNU)
 DRYER; MR. JOSEPH HALLIGAN;
 P.A. (FNU) WEBSTER; P.A. JO ANN
 STOCK; DR. (FNU) PHILBIN,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, BRISCOE, and HARTZ, Circuit Judges.


      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)(2); 10th

Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

      Plaintiff-Appellant Orley Kim Brock, a Colorado prisoner appearing pro se,


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
filed this action under 42 U.S.C. § 1983, alleging unconstitutional prison

conditions. The District Court dismissed the claim without prejudice under 42

U.S.C. § 1997e(a) for failure to exhaust administrative remedies. Mr. Brock

appeals the dismissal and moves this Court for leave to proceed with the appeal in

forma pauperis. We take jurisdiction under 28 U.S.C. § 1291, AFFIRM the

dismissal of Mr. Brock’s complaint, and DENY his motion to proceed in forma

pauperis.

                               I. BACKGROUND

      In January 2001, Mr. Brock injured his back while working in the prison

kitchen. As a result of that injury, he required medication which he claims was

wrongly withheld at various times. After several attempts to demonstrate the

seriousness of his injury to prison officials, Mr. Brock was eventually sent to a

Denver hospital to receive an MRI. The MRI, however, was not administered;

instead, Defendant Dryer took x-rays and returned Mr. Brock to prison. In July

2002, Mr. Brock did undergo an MRI and in August had surgery on four lumbar

discs. That November, prior to obtaining a doctor’s restriction, Defendant

Halligan ordered Mr. Brock to do yard maintenance, further injuring Mr. Brock’s

back. Throughout much of this time, Mr. Brock filed various informal complaints

and grievances with the Department of Correction, which were mostly denied,

apparently by Defendants Stock, Bullard, and Webster. The other named


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Defendants’ involvement with Mr. Brock’s claim is unclear.

      In January 2004, Mr. Brock commenced this civil rights action in the

District of Colorado pursuant to 42 U.S.C. § 1983, alleging Eighth Amendment

cruel and unusual punishment and Fourteenth Amendment due process violations

stemming from his back injury and related conditions of confinement. Mr. Brock

sought both compensatory and punitive damages. The District Court ordered Mr.

Brock to demonstrate he had exhausted administrative remedies as required by 28

U.S.C. § 1997e(a) by attaching copies of any grievances filed with the Colorado

Department of Corrections or by describing their disposition with specificity. Mr.

Brock amended his complaint to reflect several Step I and II grievances. Because

Mr. Brock had never filed a Step III grievance relating to his January 2001 injury,

the court dismissed Mr. Brock’s claim without prejudice for failure to exhaust

administrative remedies pursuant to 42 U.S.C. § 1997e(a).

      Mr. Brock then filed a timely notice of an appeal and moved the District

Court to grant in forma pauperis status. The court denied the in forma pauperis

motion pursuant to 28 U.S.C. § 1915(a)(3), stating that Mr. Brock’s appeal was

not made in good faith because he put forth a frivolous argument in support of his

appeal. He renewed his motion for in forma paureris in this Court.

                         II. STANDARD OF REVIEW

      We review de novo the District Court’s dismissal for failure to exhaust


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administrative remedies under 42 U.S.C. § 1997e(a).     Jernigan v. Stuchell , 304

F.3d 1030, 1032 (10th Cir. 2002).

                                 III. DISCUSSION

      We face two issues on appeal. First, did the District Court properly dismiss

Mr. Brock’s claim for failure to exhaust administrative remedies? Second, should

we grant Mr. Brock’s in forma pauperis motion? We address these in turn.

A.    Dismissal for Failure to Exhaust Administrative Remedies

      In 1996, Congress enacted the Prison Litigation Reform Act, which

includes an exhaustion requirement for prisoners’ suits that involve prison

conditions.   See 42 U.S.C. § 1997e(a). Under § 1997e(a), “[n]o       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.”

      On appeal, Mr. Brock argues that § 1997e(a) is inapplicable in his case, as

he is seeking monetary damages and no administrative course taken with the

Colorado Department of Corrections will provide him with monetary relief. Thus,

he argues, there are no administrative remedies for him to exhaust. The United

States Supreme Court has squarely rejected Mr. Brock’s proposition.        See Booth v.

Churner, 532 U.S. 731, 734 (2001) (holding that a prisoner suing for damages

“must complete a prison administrative process that could provide some sort of


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relief on the complaint stated, but no money.”). Under § 1997e(a), then, Mr.

Brock must first seek redress within the Department of Corrections before

initiating a lawsuit   regarding prison conditions.

       Even reading Mr. Brock’s complaint liberally,      Haines v. Kerner , 404 U.S.

519, 520-21 (1972), it is clear that Mr. Brock has not exhausted available

administrative remedies. Mr. Brock has the burden of showing he has indeed

exhausted administrative remedies.      Steele v. Fed. Bureau of Prisons   , 355 F.3d

1204, 1210 (10th Cir. 2003). To satisfy this burden, Mr. Brock must attach copies

of the administrative proceedings or describe their disposition specifically in his

amended complaint.       Id. at 1211.

       As the District Court noted, Mr. Brock failed to attach copies of his

grievances or to describe their disposition specifically. While he does allege that

he filed several grievances and gives the dates on which they were filed, none

relevant to this lawsuit proceeded through the three-step grievance procedure.      1



As such, Mr. Brock has not met his burden of demonstrating he has exhausted

administrative remedies. The District Court, therefore, properly dismissed Mr.

Brock’s claim without prejudice for failure to comply with § 1997e(a).




       Mr. Brock does allege he filed one Step III grievance to which no response
       1

was given. While that grievance would satisfy § 1997e(a), it was first filed prior
to Mr. Brock’s January 2001 injury and is thus unrelated to the claims in this
lawsuit.

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B. Denial of Motion to Appeal In Forma Pauperis

       The District Court denied Mr. Brock’s in forma pauperis motion under §

1915(a)(3), stating that the appeal was not taken in good faith. Specifically, the

Court found that Mr. Brock had put forth a frivolous argument on appeal. Mr.

Brock moves this Court to grant in forma pauperis status under § 1915 and Fed.

R. App. P. 24(a)(5).    See also Coppedge v. United States   , 369 U.S. 438, 445

(1962) (“If the District Court finds the application is not in good faith, and

therefore denies leave to appeal in forma pauperis, the defendant may seek

identical relief from the Court of Appeals.”)

       We note that while the District Court’s determination is not conclusive, it is

entitled to weight.    Id. at 446. After reviewing Mr. Brock’s argument on appeal –

namely, that he need not exhaust administrative remedies because he seeks money

damages – in light of clear authority to the contrary, we adopt the District Court’s

finding that Mr. Brock has failed to show the existence of a nonfrivolous

argument on the law and facts. We therefore deny Mr. Brock’s motion to appeal

in forma pauperis and order him to pay immediately the balance owing on fees

incurred as part of this appeal.

                                   IV. CONCLUSION

       For these reasons, we AFFIRM the District Court’s order dismissing Mr.

Brock’s claim for failure to exhaust administrative remedies under § 1997e(a) and


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DENY Mr. Brock’s motion to proceed in forma pauperis on his appeal of the

dismissal.

                                    ENTERED FOR THE COURT,



                                    Deanell Reece Tacha
                                    Chief Circuit Judge




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