                                                            F I L E D
                                                      United States Court of Appeals
                                                              Tenth Circuit
                 UNITED STATES CO URT O F APPEALS
                                                             June 12, 2006
                        FO R TH E TENTH CIRCUIT          Elisabeth A. Shumaker
                                                             Clerk of Court



B RIA N L. B RO WN ,

         Plaintiff-Appellant,

 v.                                            No. 05-3174
                                        (D.C. No. 04-CV -3216-JW L)
M . EARDLEY, Senior Correctional                 (D . Kan.)
O fficer, U SP-Leavenw orth; (FNU)
SEM ICK, Facility Lieutenant,
U SP-Leavenw orth; (FN U ) G A LLY,
Correctional Officer,
USP-Leavenworth; (FNU) M ULLINS,
Correctional Officer,
U SP-Leavenw orth; (FN U ) A SHM AN,
Unit M anager, UPS-Leavenworth;
(FN U) HOW ARD, Correctional
Counselor, U SP-Leavenworth; G. ,
Case M anager, USP-Leavenworth;
(FN U) CAVAJAL, Facility Captain,
U SP-Leavenw orth; (FN U )
NITCHELS, Former Associate
W arden, USP-Leavenworth; HELEN
M ARBERRY, Former Associate
W arden, U SP-Leavenw orth; (FNU)
M ELDNER, Unit M anager,
U SP-Leavenw orth; (FN U ) G O ODIN,
Special Investigator,
USP-Leavenworth; (FNU) RO SALU S,
Special Investigator,
U SP-Leavenw orth; (FN U ) LA CY,
Disciplinary Judge, USP-Leavenworth,

         Defendants-Appellees.
                           OR D ER AND JUDGM ENT *


Before POR FIL IO, B AL DOC K , and EBEL, Circuit Judges.




      Plaintiff Brian L. Brown, a federal prisoner proceeding pro se, appeals the

district court’s order dismissing his claims of cruel and unusual punishment

against federal prison personnel, brought pursuant to Bivens v. Six Unkown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The district

court ruled that dismissal was required because M r. Brown had not exhausted his

administrative remedies by completing the prison grievance procedures.

M r. Brown then filed a motion to reconsider, which the district court denied. W e

affirm.

                              Appellate Jurisdiction

      W e have appellate jurisdiction only over the district court’s order

dismissing M r. Brown’s claims. W hile his motion for reconsideration was




*
       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.

                                         -2-
pending, M r. B row n filed a notice of appeal from the judgment of dismissal. H e

did not file a new or amended notice of appeal after the district court entered the

order denying reconsideration. Accordingly, we do not have jurisdiction over the

order denying reconsideration. Fed. R. App. P. 4(a)(4)(B)(ii); Anderson v. State

Farm M ut. Auto. Ins. Co., 416 F.3d 1143, 1147 (10th Cir. 2005).

                                    Background

      M r. Brown filed several prison grievances alleging that prison officials

harassed and injured him. The district court determined that he had not fully

exhausted any of the grievances. See Ross v. County of Bernalillo, 365 F.3d

1181, 1189 (10th Cir. 2004) (holding that Prison Litigation Reform Act 42 U.S.C.

§ 1997e(a) contains “a total exhaustion requirement;” accordingly, where

complaint contains unexhausted claims, district court is required to dismiss entire

action). Consequently, the district court dismissed the complaint. 1

      On appeal, M r. Brown asserts (1) he followed the prison grievance

procedures dictated by 28 C.F.R. § 542.18 for emergencies, and he should be

excused from complying with the filing deadlines because prison officials did not

respond to his emergency grievances within the time provided by that section,

(2) under Rhines v. Weber, 544 U.S. 269 (2005), the district court should not have

dismissed his case, but should have granted him an opportunity to exhaust his



1
      The district court also ruled on various other motions, none of w hich are
before us in this appeal.

                                         -3-
administrative remedies, (3) prison officials had a deliberate practice of failing to

process grievances in a timely manner, thus excusing him from complying with

the required time limits, (4) prison officials’ instructions on how to meet time

deadlines w ere so unclear and confusing as to excuse him from complying with

the required time limits, and (5) although a prisoner’s untimely filing may be

excused if the Bureau of Prisons provides a letter stating that the delay was not

the prisoner’s fault, prison staff refused to provide these letters.

                                  Legal Framework

      Under the Prison Litigation Reform Act (PLRA), “[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.”

42 U.S.C. § 1997e(a). Exhaustion is required “regardless of the relief offered

through administrative procedures.” Booth v. Churner, 532 U.S. 731, 741 (2001).

Federal prisoners are required to follow a four-step grievance procedure.

28 C.F.R. §§ 542.13 - 542.18; Yousef v. Reno, 254 F.3d 1214, 1220 (10th Cir.

2001). The plaintiff bears the burden of establishing exhaustion. Steele v. Fed.

Bur. of Prisons, 355 F.3d 1204, 1210 (10th Cir. 2003).

      “W e review de novo a district court’s dismissal of an inmate’s suit for

failure to exhaust his or her administrative remedies.” Patel v. Fleming, 415 F.3d

1105, 1108 (10th Cir. 2005). Plaintiff is representing himself on appeal so his

                                           -4-
pleadings will be liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21

(1972). Although we construe liberally M r. Brown’s pro se pleadings and hold

them to a “less stringent standard than formal pleadings drafted by lawyers, [he]

must nonetheless set forth sufficient facts to support [his] claims.” Diaz v. Paul

J. Kennedy Law Firm, 289 F.3d 671, 674 (10th Cir. 2002) (citing Hall v. Bellmon,

935 F.2d 1106, 1110-12 (10th Cir. 1991)). M oreover, this court generally does

not address issues that were not presented to the district court. Wilburn v.

M id-South Health Dev., Inc., 343 F.3d 1274, 1280 (10th Cir. 2003).

                                     Discussion

      M r. Brown first asserts that his prison grievances w ere exhausted fully

under 28 C.F.R. § 542.18. He argues that because his grievances were

emergencies, the warden’s response was required within three days, rather than

twenty calendar days. He relies on the following language of § 542.18: “If the

[A dministrative Remedy] Request is determined to be of an emergency nature

which threatens the inmate’s immediate health or welfare, the W arden shall

respond not later than the third calendar day after filing.” The warden did not

respond within three days of the date he filed any of his six grievances.

Therefore, according to M r. Brown, he is excused from complying with the

grievance procedure time limits.

      W e need not address how § 542.18’s provision for treatment of an emergency

grievance should be applied because even if it should have been applied to

                                         -5-
M r. Brown’s grievances, he was still required to exhaust fully those grievances.

Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (holding “inmate who

begins the grievance process but does not complete it is barred from pursuing a [civil

rights] claim under PLR A for failure to exhaust his administrative remedies”).

M r. B rown does not claim that he exhausted his grievances according to the

procedures mandated by 28 C.F.R. §§ 542.13 through 542.18. Accordingly, w e

affirm the district court’s order dismissing M r. Brown’s claims for failure to exhaust

administrative remedies.

      M r. Brown next argues that the district court should not have dismissed his

case but, instead, should have permitted him to exhaust his prison grievance

remedies. He asserts that under Rhines v. Weber, 544 U.S. 269 (2005), the

district court had the discretion to hold his case open until his claims were

exhausted. Rhines is inapposite. It addresses “the problem of a ‘mixed’ petition

for habeas corpus relief in which a state prisoner presents a federal court with a

single petition containing some claims that have been exhausted in the state

courts and some that have not.” 544 U.S. at 271. The district court correctly

dismissed M r. Brown’s claims pursuant to Ross, which requires a district court to

dismiss the entire action without prejudice when the complaint includes

unexhausted claims. Ross, 365 F.3d at 1189.

      Finally, M r. Brown argues that he should be excused from the exhaustion

requirement because prison officials (1) engaged in a deliberate practice of failing

                                          -6-
to process grievances in a timely manner, (2) did not clearly instruct him on how

to meet the filing deadlines, and (3) refused to prepare the necessary letters to

explain that the filing delays were not his fault. W e do not address the merits of

these arguments because they were not presented to the district court or they were

raised for the first time in the post-judgment motion to reconsider. As noted

above, w e decline to consider issues not presented to the district court, and we

have no jurisdiction to review the order denying reconsideration. In making this

determination, we have carefully review ed the record on appeal, particularly

documents 91 and 92, which are M r. Brown’s response and brief in opposition to

defendants’ motion to dismiss.

      The district court granted M r. Brown’s motion to proceed without

prepayment of costs and fees. He is reminded that he is obligated to continue

making partial payments until the entire fee has been paid.

      The judgment of the district court is AFFIRMED.



                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




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