                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JUN 19 1997
                                  TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 HENRY RAY TAFOYA,

          Plaintiff-Appellant,
 v.

 CHARLES SIMMONS, Director of
 Kansas Department of Corrections;
                                                        No. 96-3237
 ROBERT D. HANNIGAN, Warden,
                                                  (D.C. No. 96-3317-GTV)
 Hutchinson Correctional Facility,
                                                         (D. Kan.)
          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before BRORBY, EBEL and KELLY, Circuit Judges.



      Plaintiff Henry Ray Tafoya (“Tafoya”) appeals the district court’s dismissal

of his civil rights complaint filed pursuant to 42 U.S.C. § 1983 after determining

that Tafoya had not exhausted available administrative remedies through the



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
prison grievance procedure. We exercise jurisdiction under 28 U.S.C.

§ 1291(a)(1) and AFFIRM.



                                 BACKGROUND

       On June 17, 1996, Tafoya filed this § 1983 action claiming that Charles

Simmons (“Simmons”), as Director of the Kansas Department of Corrections, and

Robert D. Hannigan (“Hannigan”), as Warden of the Hutchinson Correctional

Facility (“Hutchinson”), had violated his constitutional rights under color of state

law. (ROA, ex. C). Tafoya claimed, inter alia, that the prison conditions at

Hutchinson were sufficiently poor to violate his Eighth Amendment right to be

free from cruel and unusual punishment, that the defendants’ failure to train

correctional officers at Hutchinson violated his substantive due process rights

under the Fourteenth Amendment, and that Hutchinson’s practice of subjecting

prisoners to disciplinary hearings violated the prisoners’ right to be free from

double jeopardy. (Id.). Tafoya seeks monetary damages and various forms of

injunctive relief. (Id.).

       The district court did not address the merits of Tafoya’s claims but, rather,

dismissed his claims for failure to exhaust administrative remedies under 42

U.S.C. § 1997e(a) (West Supp. 1997). (D.Ct. Order). Tafoya appeals on the

grounds that exhaustion would have been futile. (Aplt. Brief, at 3).


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                                   DISCUSSION

      42 U.S.C. § 1997e(a) provides that “[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) (West Supp. 1997).

      Tafoya concedes that he has not exhausted administrative remedies, but

argues that he does not need to exhaust where exhaustion would be futile. Tafoya

relies on Deltona Corp. v. Alexander, 682 F.2d 888 (11th Cir. 1982) for the

proposition that “[c]ourts will not require exhaustion . . . when the administrative

remedy is inadequate because it does not exist, would not provide relief

commensurate with the claim, or would be so unreasonably delayed as to create a

serious risk of irreparable injury.” Id. at 893. Tafoya’s arguments are misplaced.

      As an initial matter, courts look to the kind of institutional and individual

interests weighed by the Deltona court only when Congress has not spoken to

whether exhaustion is required. “Of paramount importance to any exhaustion

inquiry is congressional intent[;]” thus, “[w]here Congress specifically mandates,

exhaustion is required.” McCarthy v. Madigan, 503 U.S. 140, 144 (1992). With

regard to prison conditions litigation, Congress has specifically mandated




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exhaustion, see 42 U.S.C. § 1997e(a) (West Supp. 1997), 1 and thus we do not

weigh the fairness of that requirement.

      Moreover, Tafoya has not made any showing that exhausting administrative

remedies would be futile in this case; rather, he relies on the conclusory

allegation that “the administrations actions will not resolve the merits of this

action.” (Aplt. Brief, at 3) (emphasis in original). Thus, even if we believed

futility were relevant, we would have no evidence by which to determine whether,

in fact, it would be futile to require Tafoya to exhaust.



                                  CONCLUSION

      Because Tafoya has not exhausted administrative remedies with regard to

his civil rights claim as required by 42 U.S.C. § 1997e(a), we AFFIRM the

district court’s dismissal of Tafoya’s case.

      The mandate shall issue forthwith.

                                       ENTERED FOR THE COURT


                                       David M. Ebel
                                       Circuit Judge




      1
       Although 42 U.S.C. § 1997e(a) only requires the exhaustion of any
administrative remedies that are “available,” Tafoya has not argued that there are
no administrative remedies available with regard to his claims.

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