                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                 August 13, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT



 JEFFREY ALLEN HOLDEN,

               Plaintiff-Appellant,                     No. 09-7033
          v.                                    Eastern District of Oklahoma
 WALTER DINWIDDIE and                       (D.C. No. 6:08-CV-00211-JHP-SPS)
 OKLAHOMA DEPARTMENT OF
 CORRECTIONS,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before LUCERO, MURPHY and McCONNELL, Circuit Judges.


      Jeffrey A. Holden, a prisoner proceeding pro se, filed a § 1983 suit in the

United States District Court for the Eastern District of Oklahoma, alleging two

Eighth Amendment violations against corrections officers: they failed to provide

him with treatment for drug, alcohol, and sex addictions while in prison and


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
forced him to live in an environment with prevalent drug use. His suit sought

immediate treatment for his addictions, and either a suspension of his sentence or

an alternative form of confinement. The district court granted the defendants’

motion to dismiss, and Mr. Holden now appeals.

                                    Discussion

      Mr. Holden challenges the district court’s dismissal of his complaint for

failure to exhaust administrative remedies, as is required by 42 U.S.C. § 1997e(a).

We review de novo a district court’s dismissal for failure to exhaust. Fields v.

Okla. State Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007). Mr. Holden

argues that he did not need to exhaust the administrative remedies in Department

of Corrections (DOC) Policy, OP-090124, which sets forth an “Inmate/Offender

Grievance Process,” because his claims were not redressable under the DOC

Policy. The DOC Policy, however, applies to “issues regarding conditions of

confinement,” presumably including inadequate medical treatment while

incarcerated. Because Mr. Holden alleges inadequate medical treatment, he had

to follow the DOC Policy procedures.

      Mr. Holden argues that even if his claim fell under the DOC Policy, he met

the exhaustion requirements. We disagree. The manager of the DOC

Administrative Review Unit and the Nurse Manager of the DOC Medical Services

office stated that they received no grievance or appeal from Mr. Holden, and such

steps are required under the DOC Policy. Though Mr. Holden submitted a

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Request to Staff (“RTS”), to which, allegedly, no prison officials responded in

writing, this does not satisfy the exhaustion requirement. While filing an RTS is

one step in the process, two sections of the DOC Policy provide a mechanism for

complaining about a lack of response. See OP-90124, §§ IV(B)(7),V(C)(4). Mr.

Holden failed to invoke this mechanism. “An inmate who begins the grievance

process but does not complete it is barred from pursuing a § 1983 claim under

PLRA for failure to exhaust his administrative remedies.” Jernigan v. Stuchell,

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

      In the alternative, the district court dismissed Mr. Holden’s action on the

ground that his prayer for relief seeks a change in his sentence rather than a

change in the conditions of his confinement, and thus must be brought in a

“separate proper petition for a writ of habeas corpus.” Dist. Ct. Or. 3–4; see

Boutwell v. Keating, 399 F.3d 1203, 1210 (10th Cir. 2005) (holding that where a

prisoner seeks a change in punishment that would “differ[] significantly from

being confined within the walls of prison,” § 1983 relief is unavailable). The

complaint asks that his sentence be suspended, that he be placed on house arrest,

or that he be allowed to wear an ankle monitor in lieu of incarceration. Mr.

Holden counters that these requests for relief are not challenges to the duration of

his sentence, and even if they were, the court should have construed his claim as a

habeas petition.




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      Even if Mr. Holden is right that a § 1983 action is the appropriate vehicle

for all of the relief he seeks, his claim still falls under the DOC Policy and still

fails for lack of exhaustion as previously discussed. If, however, the district court

correctly concluded that his claim sounds in habeas, it properly dismissed Mr.

Holden’s complaint without giving him an opportunity to amend. Dismissing a

pro se complaint is appropriate where “it is obvious that the plaintiff cannot

prevail on the facts he has alleged and it would be futile to give him an

opportunity to amend.” Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir.

2002). Here, any amendment would be futile because Mr. Holden has not yet

exhausted his state remedies as is required by 28 U.S.C. 2241, Montez v.

McKinna, 208 F.3d 862 (10th Cir. 2000), nor has he shown that he was denied a

meaningful opportunity to do so. Thus, any amendment to his complaint would

be subject to dismissal.

                                      Conclusion

      Accordingly, the judgment of the United States District Court for the

Eastern District of Oklahoma is AFFIRMED.

      We remind Mr. Holden of his obligation to continue making partial

payments until his $455 fee is paid in full.

                                                      Entered for the Court,

                                                      Michael W. McConnell
                                                      Circuit Judge


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