                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           OCT 2 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    FRANCISCO GONZALES-LIRANZA,

                Plaintiff-Appellant,

    v.                                                    No. 02-2110
                                                (D.C. No. CIV-98-997 JP/WWD)
    SERGEANT JOHNNY NARANJO,                               (D. N.M.)

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before HARTZ , Circuit Judge, BRORBY , Senior Circuit Judge, and
TYMKOVICH , Circuit Judge.




         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      This order and judgment is not binding precedent, except under the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.
       Plaintiff Francisco Gonzales-Liranza appeals the district court’s dismissal

without prejudice of his 42 U.S.C. § 1983 civil rights complaint for failure to

exhaust available administrative remedies. We have jurisdiction pursuant to

28 U.S.C. § 1291, see Yousef v. Reno , 254 F.3d 1214, 1218-19 (10th Cir. 2001),

and we affirm.

       Plaintiff, a New Mexico prisoner in the custody of the Bernalillo County

Detention Center (BCDC) at the time of the incident in question, filed a pro se

§ 1983 complaint in August 1998 against defendant Sergeant Johnny Naranjo,

a correctional officer at BCDC.    1
                                       Plaintiff alleged that, in August 1996, while he

was a pre-trial detainee at BCDC, plaintiff told Sgt. Naranjo he was having

problems with certain inmates and feared for his safety. He alleged that

Sgt. Naranjo failed to take prompt measures to ensure his safety and, one hour

later, he was severely beaten by these same inmates, resulting in serious and

permanent injuries.

       Pursuant to the Prison Litigation Reform Act of 1995 (PLRA), prisoners

bringing suit under § 1983 must first exhaust available administrative remedies

before seeking relief in federal court.     See 42 U.S.C. § 1997e(a) (“No action shall

be brought with respect to prison conditions under section 1983 of this title, or



1
      Plaintiff named other defendants in his complaint, but they were    sua sponte
dismissed by the district court, and plaintiff has not challenged their dismissal.

                                             -2-
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.”). This exhaustion requirement is mandatory.       Porter v. Nussle ,

534 U.S. 516, 524 (2002) (“[a]ll ‘available’ remedies must now be exhausted;

those remedies need not meet federal standards, nor must they be plain, speedy,

and effective.” (quotation omitted)).

      Plaintiff acknowledged in his complaint that he had not exhausted

administrative remedies. In response to a question on the complaint form asking

whether he had sought informal or formal relief from the appropriate

administrative officials regarding the acts complained of, plaintiff checked the

box marked “No.” R. Doc. 1, at 4. He also marked “No” in response to

a question asking whether he had exhausted available administrative remedies.

Id. at 5. Plaintiff stated in his complaint, however, that, “[t]here are no

administrative remedies that Plaintiff is aware of . . . [and] [p]laintiff was [not]

advised that he could file anything administratively for the inactions that

occurred.” Id.

      Sergeant Naranjo filed a motion for summary judgment in March 1999,

seeking a dismissal of the complaint based on plaintiff’s failure to exhaust

administrative remedies. In his motion, Sgt. Naranjo presented evidence that

BCDC had a grievance procedure and policy in effect at the time of the events in


                                          -3-
question. He attached a copy of the prison’s grievance policy and an affidavit

from a BCDC prison official stating that the prison records indicated plaintiff had

not filed any form of grievance regarding the incident in question.

       Before ruling on the exhaustion issue, however, the district court requested

defendant file a Martinez report to investigate the incidents forming the basis of

plaintiff’s complaint.   See Martinez v. Aaron , 570 F.2d 317, 319 (10th Cir. 1978)

(holding that report may be necessary to determine certain preliminary issues).

After Sgt. Naranjo filed a   Martinez report, the district court dismissed the

complaint, ruling on the merits that the alleged conduct of Sgt. Naranjo did not

rise to the level of a constitutional violation. This court reversed that dismissal

on appeal, however, ruling that plaintiff had been denied a proper opportunity to

respond to Sgt. Naranjo’s motion for summary judgment and the       Martinez report.

Gonzalez-Liranza v. Naranjo , No. 99-2302, 2000 WL 488476 (10th Cir. Apr. 26,

2000) (unpublished disposition).

       On remand, Sgt. Naranjo filed a motion to dismiss for failure to exhaust the

available prison administrative remedies. In response, plaintiff, now represented

by counsel, reasserted his allegation in the complaint that he was unable to avail

himself of the prison grievance procedures because he was never advised by

BCDC that there were any such procedures. Plaintiff did not dispute that the

prison had a grievance policy, but he attached his affidavit stating that when he


                                           -4-
was taken to BCDC, he was never informed that the prison had a grievance

process nor was he given any written materials informing him of his right to file

a complaint or initiate a grievance procedure. He also stated in his affidavit that

he informed a prison guard shortly after the incident in question that he wished to

file a complaint, and this official took notes and said he would investigate the

matter, but did not tell plaintiff he had to fill out a complaint form.

      After a request by the court for supplemental briefing, Sgt. Naranjo

presented evidence that BCDC provides an inmate handbook, written in both

English and Spanish, to all newly admitted inmates during an admission

orientation, that the prison’s grievance procedures are included in the handbook

and that the contents of the handbook are explained to all inmates during the

orientation. Sergeant Naranjo also presented evidence that plaintiff had been

housed in BCDC on seven different occasions and would have received a copy

of the inmate handbook each time.

      The district court ruled that plaintiff did not exhaust his administrative

remedies as required by § 1997e(a), but because there was a factual dispute as to

whether plaintiff was aware of the available grievance procedures, it dismissed

the complaint without prejudice and ordered BCDC to provide plaintiff with

a copy of its grievance procedures.




                                          -5-
       On appeal, plaintiff contends the district court erred in dismissing the

complaint because there was a factual dispute whether the prison had informed

him of its grievance procedures. “We review de novo a dismissal for failure to

exhaust administrative remedies.”            Jernigan v. Stuchell , 304 F.3d 1030, 1032

(10th Cir. 2002).

       The district court correctly dismissed plaintiff’s complaint for failure to

exhaust BCDC’s grievance procedure. The district court did not resolve any

factual dispute between the parties, and, as a matter of law, any factual dispute

between the parties as to whether or not plaintiff was ever advised or informed of

the prison’s grievance procedures was not relevant. This court has previously

rejected a prisoner’s assertion that the government should have advised him of the

need to follow prison administrative procedures.           Yousef , 254 F.3d at 1221

(rejecting argument as lacking any authority). “The statutory exhaustion

requirement of § 1997e(a) is mandatory, and the district court [is] not authorized

to dispense with it.”    Beaudry v. Corr. Corp. of Am. , 331 F.3d 1164, 1167 n.5

(10th Cir. 2003). As the Supreme Court has broadly stated: “[W]e stress the

point . . . that we will not read futility      or other exceptions into [PLRA’s] statutory

exhaustion requirement[ ].”        Booth v. Churner , 532 U.S. 731, 741, n.6 (2001)

(emphasis supplied).




                                                  -6-
      “Section 1997e(a) says nothing about a prisoner’s subjective beliefs, logical

or otherwise, about the administrative remedies that might be available to him.

The statute’s requirements are clear: If administrative remedies are available,

the prisoner must exhaust them.”    Chelette v. Harris , 229 F.3d 684, 688 (8th Cir.

2000). “Congress intended to save courts from spending countless hours,

educating themselves in every case, as to the vagaries of prison administrative

processes, state or federal” and “did not intend for courts to expend scarce

judicial resources examining how and by whom a prison’s grievance procedure

was implemented.”      Concepcion v. Morton , 306 F.3d 1347, 1354 (3d Cir. 2002)

(quotation omitted).

      It is undisputed that BCDC had a written grievance procedure and it is

undisputed that plaintiff did not exhaust that procedure. Plaintiff does not allege

that BCDC did anything to frustrate or prevent him from utilizing those

procedures. See Mitchell v. Horn , 318 F.3d 523, 529 (3d Cir. 2003) (holding

district court erred in failing to consider prisoner’s claim that he was unable to

file a grievance, and therefore lacked available administrative remedies, because

prison officials refused to provide him with the necessary grievance forms).

Plaintiff’s claim that he told a prison guard he wished to file a complaint and was

not told about the administrative remedies is unavailing. Giving notice of his




                                          -7-
claims by means other than the prison’s available grievance process does not

satisfy PLRA’s exhaustion requirement.    See Jernigan , 304 F.3d at 1032.

      Thus, even accepting plaintiff’s allegation that he was unaware of the

grievance procedures, there is no authority for waiving or excusing compliance

with PLRA’s exhaustion requirement. Accordingly, the judgment of the district

court is AFFIRMED.


                                                    Entered for the Court



                                                    Timothy M. Tymkovich
                                                    Circuit Judge




                                         -8-
