                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                             FOR THE TENTH CIRCUIT                        July 12, 2018
                         _________________________________
                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
EDDIE MAGALLANES,

      Plaintiff - Appellant,

v.
                                                            No. 17-8077
P. HARDING, individually and in his               (D.C. No. 2:16-CV-00278-SWS)
official capacity; SECURITY MAJOR                            (D. Wyo.)
DOE, individually and in his official
capacity; EDDIE WILSON, individually
and in his official capacity; DAN
SHANNON, individually and in his official
capacity; ROBERT LAMPERT,
individually and in his official capacity;
STEVE LUNDLY, individually and in his
official capacity; STEVE HARGETT,
individually and in his official capacity;
CORPORAL KENNEDY, individually and
in his official capacity; MATTHEW
MEAD, individually and in his official
capacity; MICHAEL GROOMAN,
individually; JOSEPH MARTINEZ,
individually; BOBBY SCHAPER; STATE
OF WYOMING; WYOMING
DEPARTMENT OF CORRECTIONS;
WYOMING STATE PENITENTIARY;
JOHN AND JANE DOES, 1-30,
individually and in his/her/their official
capacity(ies),

      Defendants - Appellees.
                      _________________________________

                               ORDER AND JUDGMENT*

*
  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). The case is therefore ordered submitted
                         _________________________________

Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
                  _________________________________

       Plaintiff Eddie Magallanes brought suit under 42 U.S.C. § 1983 and Wyoming law

against several prison officials and inmates arising out of his beating while incarcerated

at the Wyoming State Penitentiary (WSP). The United States District Court for the

District of Wyoming dismissed all his claims. On appeal Magallanes challenges only the

dismissal of his § 1983 claims against prison officials based on his failure to exhaust

prison administrative remedies and qualified immunity. Exercising jurisdiction under 28

U.S.C. § 1291, we affirm. Because the district court correctly dismissed his claims with

prejudice for failure to exhaust, we need not address qualified immunity.

       “Under the Prison Litigation Reform Act (PLRA), [prisoners are] required to

exhaust all available administrative remedies prior to filing . . . suit in federal court.”

Braxton v. Zavaras, 614 F.3d 1156, 1161 (10th Cir. 2010). “Proper exhaustion demands

compliance with an agency’s deadlines and other critical procedural rules because no

adjudicative system can function effectively without imposing some orderly structure on

the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90–91 (2006). Wyoming

prisoners are required to submit their initial grievances within 30 days of the relevant

incident.



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.

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       In 2012 Magallanes was placed in an administrative-segregation unit at the WSP

after he was involved in an altercation with a corrections officer. On November 19,

2014, he was released back into a general-population unit. Soon after being released into

general population, three fellow inmates assaulted him, causing a traumatic brain injury

that placed him in a coma for a month. The State conducted an investigation into the

assault that began on the date of the assault and concluded in April 2015.

       On December 10, 2014, Magallanes was moved to the infirmary at the Wyoming

Medium Correctional Institute (WMCI), which had better treatment capabilities. He was

moved from the infirmary to a segregation unit in April 2015. In August 2015, nine

months after his assault, an outside medical consultant concluded that he had made

significant improvements in his recovery and might no longer require physical,

occupational, or speech therapy. By January 2016 he was able to file a grievance asking

to be returned to general population at the WMCI or to be returned to WSP, although this

request was denied since classification and housing decisions could not be addressed

under the grievance policy.

       On March 30, 2016, while still housed at the WMCI, Magallanes filed a separate

grievance concerning his 2014 assault. His grievance was forwarded to the WSP. The

grievance asserted that prison officials placed him in general population at the WSP

knowing that he would be assaulted by other inmates. The WSP rejected the grievance as

untimely. The grievance manager indicated that although Magallanes’s injuries excused

him from having to meet the 30-day requirement, his grievance was still filed too late

after his 2014 assault. On April 3, 2016, he filed two separate appeals: one to the


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Director of the Wyoming Department of Corrections (WDOC) and another to the WMCI,

where he was still housed. The Director summarily rejected his appeal since it was not

accepted by the WSP and thus could not be considered by the Director. A few days later,

the WMCI rejected his other appeal. Ignoring any issue of timeliness, the WMCI

explained that the State had already conducted an investigation into the assault and did

not intend further action.

       We agree that the grievance was untimely. Magallanes filed his initial grievance

in March 2016, far after the 30-day deadline to grieve his November 2014 beating.

Although he was certainly entitled to additional time because of his coma, he fails to

explain why he could not have filed a grievance much earlier. He had been released from

the infirmary about a year before he filed the grievance, and he had even filed a grievance

on an unrelated issue two months earlier.

       We are not persuaded by Magallanes’s suggestion that the State waived the 30-day

limit because the WMCI did not reject his appeal on timeliness grounds. Even if we

make the doubtful assumption that the WMCI had authority to hear an appeal from denial

of a grievance by the WSP, the Director of the WDOC is the highest authority, and he

affirmed the untimeliness dismissal.

       Because Magallanes did not file a timely grievance, he failed to exhaust

administrative remedies and his § 1983 claim was properly dismissed. Although

Magallanes argues that the district court should have permitted him to amend his

complaint, he does not explain how he could overcome his failure to exhaust. The

district court’s dismissal with prejudice was therefore proper. See McKinney v.


                                             4
Oklahoma, 925 F.2d 363, 365 (10th Cir. 1991) (court need not permit plaintiff to amend

when amendment would be futile).

      We AFFIRM the district court’s judgment.


                                           Entered for the Court


                                           Harris L Hartz
                                           Circuit Judge




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