                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          DEC 15 2003
                                  TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

CLARK BRADY,

          Plaintiff-Appellant,

v.
                                                         No. 03-1318
                                                     (District of Colorado)
DR. ANITA BLOOR; KATHY
                                                      (D.C. No. 03-Z-558)
RITTENHOUSE, (N.P.); GARY
WATKINS, (Warden LCF),

          Defendants-Appellees.




                             ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.


      After examining the briefs and 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); 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       This order and judgment is not binding precedent, except under the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.
      Clark Brady, a prisoner appearing pro se, appeals the district court’s

dismissal of his 42 U.S.C. § 1983 civil rights suit. The district court dismissed

Brady’s suit pursuant to 42 U.S.C. § 1997e(a) on the ground that Brady had failed

to exhaust his administrative remedies. As was true below, Brady does not

contend on appeal that he had exhausted his administrative remedies at the time

he filed his § 1983 complaint. Instead, he asserts that he need not exhaust

because (1) the administrative remedies available in Colorado are insufficient and

(2) § 1997e(a) does not apply to his claims. As noted by the district court,

Brady’s arguments are foreclosed by the Supreme Court’s opinion in Porter v.

Nussle, 534 U.S. 516 (2002). According to Porter,

        Once within the discretion of the district court, exhaustion in cases
        covered by § 1997e(a) is now mandatory. All “available” remedies
        must now be exhausted; those remedies need not meet federal
        standards, nor must they be “plain, speedy, and effective.” Even
        when the prisoner seeks relief not available in grievance proceedings,
        notably money damages, exhaustion is a prerequisite to suit. And
        unlike the previous provision, which encompassed only § 1983 suits,
        exhaustion is now required for all “action[s] . . . brought with respect
        to prison conditions,” whether under § 1983 or “any other Federal
        law.”
Id. at 524; see also id. at 532 (“[W]e hold that the PLRA’s exhaustion

requirement applies to all inmate suits about prison life, whether they involve

general circumstances or particular episodes, and whether they allege excessive

force or some other wrong.”).




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      The district court was clearly correct in concluding that Brady could not

proceed with his § 1983 claim because he had failed to exhaust his administrative

remedies. 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 . . . correctional facility until such administrative

remedies as are available are exhausted.”). Having so concluded, however, the

district court should have dismissed without prejudice. See Yousef v. Reno, 254

F.3d 1214, 1216 & n.1, 1222-23 (10th Cir. 2001). Accordingly, the case is

REMANDED to the district court to vacate its entry of judgment in favor of the

defendants and to, instead, dismiss Brady’s claims without prejudice to allow

exhaustion of his administrative remedies. Id. Larry Gordon’s Motion

Requesting Leave of the Court to File Amicus Curiae Brief is hereby DENIED.



                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge




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