                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         APR 6 2005
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


MICHAEL MACKEY,

          Plaintiff-Appellant,

v.                                                      No. 04-7071
                                               (Eastern District of Oklahoma)
RON WARD; MIKE MULLIN,                            (D.C. No. 03-CV-676-S)
individually and in their official
capacity,

          Defendant-Appellee.




                             ORDER AND JUDGMENT *


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


      After examining appellant’s brief 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       This order and judgment is not binding precedent, except under the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. 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.
      Proceeding pro se, state prisoner Michael Mackey appeals the district

court’s dismissal of the civil rights claims he brought pursuant to 42 U.S.C. §

1983. Mackey and four other inmates filed an amended § 1983 complaint on May

4, 2004 containing allegations that Defendants deprived them of their

constitutional rights in violation of the First Amendment by refusing to allow

them to purchase television sets. Defendants filed a motion to dismiss Mackey’s

claims, arguing that he had not exhausted his administrative remedies through the

Department of Correction’s Grievance Process (the “Grievance Process”). 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.”); Booth v. Churner , 531 U.S. 731, 741 (2001).

Mackey argued that exhaustion was futile because a provision in the Grievance

Process permits the reviewing authority to place an inmate on a grievance

restriction if the inmate is found to have abused the process. An inmate may be

found to have abused the grievance process if, inter alia, there are “repetitive

grievances [filed] by multiple inmates about the same issue.” Mackey argued that

he was subject to the restriction because two of the other plaintiffs had already

filed grievances on the same issue. The district court rejected Mackey’s argument

that exhaustion was futile, granted Defendant’s motion, and dismissed Mackey’s


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claims. The court also entered a Rule 54(b) certificate and Mackey brought this

appeal.

      This court reviews a dismissal for failure to exhaust de novo.     See Miller v.

Menghini , 213 F.3d 1244, 1246 (10th Cir. 2000).      On appeal, Mackey admits that

he did not exhaust his administrative remedies but asserts, as he did before the

district court, that restrictions on his use of the Grievance Process render

administrative remedies unavailable. Mackey’s conclusory allegations that

pursuit of administrative remedies would be futile, however, are insufficient to

excuse his failure to exhaust. Although we conclude that the district court did

not err when it dismissed Mackey’s claims, the court should have dismissed those

claims without prejudice.   See Ross v. County of Bernalillo   , 365 F.3d 1181, 1190

(10th Cir. 2004) (“If a prisoner does submit a complaint containing one or more

unexhausted claims, the district court ordinarily must dismiss the entire action

without prejudice.”);   Yousef v. Reno , 254 F.3d 1214, 1216 & n. 1, 1222-23 (10th

Cir. 2001).

      Accordingly, we affirm the district court’s dismissal of Mackey’s claims

but remand to the district court to vacate its entry of judgment in favor of

Defendants and to, instead, dismiss Mackey’s claims without prejudice.         Mackey




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is reminded that 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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