                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         July 13, 2005
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


    SCOTT LEE FEUER,

              Plaintiff-Appellant,
                                                       No. 04-3406
      v.                                        (D.C. No. 03-CV-3270-CM)
                                                         (D. Kan.)
    WILLIAM B. MCCOLLUM, MD,
    Clinical Director of Health Services;
    JUDITH LEE THARP, MD, Medical
    Officer of Health Services;
    N. LEE CONNOR, Warden of USP
    Leavenworth; GEORGE L.
    HERSHBERGER, Regional Director
    of North Central Region
    Bureau of Prisons,

              Defendants-Appellees.


                             ORDER AND JUDGMENT         *




Before EBEL , McCONNELL , and TYMKOVICH , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the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.
      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.

      Plaintiff Scott Lee Feuer, a federal inmate proceeding pro se, filed a

Bivens 1 action alleging that the defendants were deliberately indifferent to his

serious medical needs. The district court dismissed the case without prejudice

because Mr. Feuer had not exhausted the prison administrative remedies. We

affirm, but for slightly different reasons than those stated by the district court.

See Ross v. County of Bernalillo   , 365 F.3d 1181, 1184 (10th Cir. 2004).

                                     Background

      The administrative remedial scheme available to federal prisoners provides

a four-tiered grievance process: informal resolution, formal remedy request

directed to the warden, appeal to the Regional Director, and appeal to the General

Counsel. 28 C.F.R. §§ 542.13 through 542.15. Mr. Feuer relies on four

grievances complaining that his medical condition was not being treated properly.

      The first formal remedy request, number 287938, was filed January 15,

2003. The warden responded January 24, 2003, but Mr. Feuer claims he did not



1
      Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics         , 403
U.S. 388 (1971).

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receive the response. His attempt to appeal this grievance, assigned number

292312, was rejected because Mr. Feuer did not attach the warden’s January 24

response.

      The second formal remedy request, number 290548, was filed February 14,

2003. It was rejected the same day because it did not contain the correct number

of attachments or continuation pages.   See 28 C.F.R. § 542.15(b)(3). Prison

records indicate that the rejection notice was delivered to Mr. Feuer on April 2,

2003. Mr. Feuer says he was transferred to another federal prison on April 1,

2003, and did not receive the rejection notice until June 13, 2003.

      The third formal remedy request, number 291851, was filed March 3, 2003.

It was rejected the same day because it contained insufficient information. Like

the second request, the rejection notice was delivered to Mr. Feuer on April 2, but

he did not receive it until June 13.

      On April 28, 2003, Mr. Feuer filed the fourth grievance, number 297513,

directly with the Regional Director. It was rejected the same day because

Mr. Feuer did not show that he had complied with the first two levels of the

grievance process. Mr. Feuer asserts that he never received the notice of

rejection.

      Mr. Feuer filed suit in federal court, claiming he had exhausted all

available administrative remedies. The district court denied Mr. Feuer’s request


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for a hearing and dismissed the case, finding that Mr. Feuer did not complete the

four-step grievance procedure for any of his grievances, and therefore he failed to

exhaust administrative remedies.

       On appeal, Mr. Feuer challenges the district court’s orders denying him an

evidentiary hearing and dismissing his case. He does not appeal the orders

denying his motions to strike, for sanctions, for appointment of counsel, or for

default against defendants.

                                    Legal Framework

       The Prison Litigation Reform Act (PLRA) 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). The purpose of this requirement is “to reduce

the quantity and improve the quality of prisoner suits.”       Porter v. Nussle , 534 U.S.

516, 524 (2002). It applies to federal prisoners suing under       Bivens , and requires

them to exhaust inmate grievance procedures.        Id. As Mr. Feuer acknowledges,

exhaustion is required even where the available grievance procedure does not

authorize the relief requested.   See Booth v. Churner , 532 U.S. 731, 734 (2001).

       “Our review of a dismissal under the PLRA for failure to exhaust

administrative remedies is de novo.”     Ross , 365 F.3d at 1185. Mr. Feuer is


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representing himself on appeal, so his pleadings will be construed liberally.   See

Haines v. Kerner , 404 U.S. 519, 520 (1972).

                                         Analysis

       Mr. Feuer contends that he exhausted all     available administrative remedies.

He maintains that each of his four grievances was rejected because he did not

attach the warden’s response, and that he could not attach the response because he

did not receive it in a timely fashion or at all. He also relies on 28 C.F.R.

§ 542.18, which provides, “[i]f the inmate does not receive a response within the

time allotted for reply, including extension, the inmate may consider the absence

of a response to be a denial at that level.” He further claims, for the first time on

appeal, that the computerized prison records of his grievances are incorrect and

fraudulent.

       Mr. Feuer admits that he received responses from the warden for formal

remedy requests 290548 and 291851. The responses were issued on February 14

and March 3, respectively. Mr. Feuer argues that by the time he received those

responses on June 13, 2003, he had already tried to file appeals to the Regional

Director and had been refused. Moreover, he points out that the twenty-day

deadline to file appeals had long since expired when he received the responses.

See 28 C.F.R. § 542.15(a) (mandating appeal to Regional Director be filed

“within 20 calendar days of the date the Warden signed the response”).


                                            -5-
      Mr. Feuer did not attempt to file an appeal after he received the warden’s

responses. Even though the filing deadline had passed, he did not seek an

extension, as authorized by 28 C.F.R. § 542.15(a). It appears he may have been

entitled to an extension due to the delay in his receipt of the warden’s responses

to formal remedy requests 290548 and 291851 caused by his transfer to a different

federal prison on the day before the responses were delivered. The regulations

provide for an extension for valid reasons, including “an extended period

in-transit during which the inmate was separated from documents needed to

prepare the Request or Appeal.”   28 C.F.R. § 542.14(b) (listing valid reasons for

delay) (incorporated by reference in 28 C.F.R. § 542.15(a)). Therefore, we

conclude that Mr. Feuer failed to exhaust the inmate grievance procedures, and

the claims addressed by formal remedy requests 290548 and 291851 properly

were dismissed under the PLRA.

      We turn to the remaining two grievances: the first, formal remedy request

number 287938, and the fourth, grievance number 297513. In each, Mr. Feuer

claims that he did not receive a response. Therefore, he maintains he was entitled

to consider the absence of a response to be a denial, as permitted by 28 C.F.R.

§ 542.18. Defendants rely on the computerized records showing that appropriate

responses were issued in each matter. As noted above, Mr. Feuer now challenges

those computerized records.


                                         -6-
       We need not address the argument presented by either side because the

dismissal must be affirmed for another reason: “the presence of unexhausted

claims in [plaintiff’s] complaint required the district court to dismiss his action in

its entirety without prejudice.”   Ross , 365 F.3d at 1189. Consequently, our

holding that Mr. Feuer failed to exhaust formal remedy requests 290548 and

291851 dictates dismissal of the case in its entirety.

       Finally, we address Mr. Feuer’s charge that the district court should have

held an evidentiary hearing. We review this decision for an abuse of discretion.

Steele v. Fed. Bureau of Prisons   , 355 F.3d 1204, 1214 (10th Cir. 2003),   cert.

denied , 125 S. Ct. 344 (2004). Mr. Feuer has not identified any evidence he

would have presented at a hearing; indeed, only questions of law were before the

court. Accordingly, we find no abuse of discretion in denying a hearing.

                                       Conclusion

       The district court granted Mr. Feuer’s motion to proceed on appeal 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.




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      The judgment of the district court is AFFIRMED. The mandate shall issue

forthwith.



                                                Entered for the Court



                                                David M. Ebel
                                                Circuit Judge




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