                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          DEC 17 2003
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

WILLIAM HUNT,

              Plaintiff-Appellant,                      No. 03-1419
         v.                                            (D. Colorado)
JOSEPH ORTIZ, Ex. Dir. Colo. Dep’t                  (D.C. No. 03-Z-971)
of Corr.; JOSEPH McGARRY, Chief
Med. Officer, Colorado D.O.C.;
GARY WATKINS, Warden, Limon
Corr. Facility; SHERRY JASPER,
Limon Corr. Facility Med. Staff; DON
BRIGHTWELL, Limon Corr. Facility
Librarian Supervisor; JIM DAY,
Major, Limon Corr. Facility Programs
Manager; CHRISTOPHER
PETROZZI, Dir. Limon Corr. Facility
Clinic Serv.; B. RAGLAND, Lt.,
Limon Corr. Facility Program
Coordinator; ANDREW BRELAND,
Regional Co. D.O.C. Librarian; R.
KAHANIC, Cap’t., Limon Corr.
Facility Job Bd.; S. BUTLER, Lt.,
Limon Corr. Facility Job Bd.;
PHYLLIS WILSON, Limon Corr.
Facility Librarian, each in his or her
official and individual capacities,

              Defendants-Appellees.




                           ORDER AND JUDGMENT *


     *
         This order and judgment is not binding precedent, except under the
                                                                     (continued...)
Before EBEL, HENRY, and HARTZ, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously to decide this case on the briefs without oral argument. See Fed. R.

App. 34(a)(2).

      William Hunt, a state prisoner proceeding pro se, is incarcerated at the

Limon Correctional Facility at Limon, Colorado. He filed an amended civil rights

complaint pursuant to 42 U.S.C. § 1983. The district court dismissed two of his

claims without prejudice for failure to exhaust administrative remedies, and the

court dismissed the balance of his complaint with prejudice because the claims

were frivolous. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.



                                I. BACKGROUND

      In his amended complaint, Mr. Hunt contends that on two occasions

(October 10, and 17, 2002), he refused to allow Limon Correctional Facility

authorities to draw blood to test him for HIV/AIDS. Mr. Hunt was “written up”

for each refusal. Following the hearing for his first write-up, Mr. Hunt was


      *
       (...continued)
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-
convicted of violating disciplinary rules, received ten days’ segregation, which

was suspended, and was placed on probation for ninety days. Following his

hearing for his second write-up, Mr. Hunt was convicted of violating disciplinary

rules, and he received thirty days’ segregation.

      He raises four claims in his complaint: (1) his Fourth and Fourteenth

Amendment rights were violated when he was subjected to the mandatory testing,

and when defendants disclosed in the notice of disciplinary charges that he

refused to provide a blood sample for AIDS testing; (2) his convictions of the

disciplinary charges were unlawful retaliation against him for refusing to provide

a blood sample; (3) his equal protection rights were violated because the

administrative regulations requiring AIDS testing is not applied to any other

inmates at the Limon Correctional Facility; and (4) he was unlawfully retaliated

against for filing grievances regarding the involuntary AIDS testing, evidenced by

his loss of his prison job and his denial of access to the law library.

      The district court examined Mr. Hunt’s first two claims on the merits and

determined that our precedent indicates there is no Fourth Amendment violation

when a prisoner is subjected to involuntary AIDS testing, citing Dunn v. White,

880 F.2d 1188, 1197 (10th Cir. 1989). As a result, his constitutional rights were

not violated when prison officials disclosed in the notice of disciplinary charges

that Mr. Hunt was being tested for AIDS. The court also concluded that



                                          -3-
“threatening an inmate with placement in segregation for refusing to participate in

mandatory AIDS testing does not violate the Due Process Clause of the

Fourteenth Amendment.” Rec. doc. 11, at 7 (Dist. Ct. Order, filed Sept. 4, 2003).

Finally, the court concluded that Mr. Hunt could establish no retaliation claim

because “he does not have a constitutional right to refuse to provide a blood

sample for mandatory AIDS testing.” Id. at 8. The court dismissed claims (1)

and (2) as legally frivolous under 28 U.S.C. § 1915A. Id. at 9.

      Following dismissal, Mr. Hunt filed a motion to reconsider under Fed. R.

Civ. P. 59(e), challenging the district court’s dismissal of his claims (1) and (2) as

legally frivolous. Mr. Hunt emphasized that prisoners have a right to privacy in

their medical records, and this information should not be disclosed to non-medical

personnel. The district court denied this motion after concluding Mr. Hunt could

demonstrate no intervening change in controlling law, no new evidence, and no

need to correct clear error or prevent manifest injustice.

      The magistrate judge ordered Mr. Hunt to show cause why the balance of

the complaint should not be dismissed for failure to exhaust administrative

remedies. Mr. Hunt contends he exhausted his administrative remedies for the

remaining claims. He maintains he filed grievances and appeals for each write

up. He contends that the appeals were denied as untimely, which resulted from

the late receipt of the appeal form from his case manager.



                                          -4-
      The district court closely examined the grievances Mr. Hunt filed and

determined that he did not exhaust his administrative remedies regarding claims

(3) and (4). The district court dismissed those claims without prejudice for

failure to exhaust.



                                  II. DISCUSSION

      We review de novo the district court’s finding of failure to exhaust

administrative remedies. See Miller v. Menghini, 213 F.3d 1244, 1246 (10th Cir.

2000) (“We review de novo a dismissal pursuant to section 1997e(a).”), overruled

on other grounds by Booth v. Churner, 532 U.S. 731 (2001). We review the

denial of Fed. R. Civ. P. 59(e) motion for an abuse of discretion. See Phelps v.

Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997). Since Mr. Hunt is pro se, we

liberally construe his filings. See Haines v. Kerner, 404 U.S. 519, 520 (1972)

(per curiam).



      A. Dismissal for frivolousness

      As to Mr. Hunt’s Fourth and Fourteenth Amendment claims, he maintains

that even if Colorado has a valid policy regarding screening for HIV, his refusal

to allow the blood draw was disclosed to non-medical personnel, who then

disclosed this information to inmates in his unit, resulting in constitutional



                                         -5-
violations. Mr. Hunt alleges that the inmates and DOC staff assumed he is HIV

positive and that he was shunned and suffered ridicule, harassment, and

psychological injuries as a result. Mr. Hunt also points to DOC’s strict

regulations regarding the unauthorized disclosure of the “strictly confidential”

reports and records concerning persons who are diagnosed with AIDS. See Rec.

doc. 12, Mot. for Relief from Order of Judgment and Dismissal of Claims due to

the Court’s Findings that They are Legally Frivolous, Attach. “A” (AIDS Staff

Briefing Form on Confidentiality) at 3 (Colo. Rev. Stat. § 25-4-1404 Use of

Reports, commentary).

      The refusal to take a medical test does not qualify as a confidential

information, although we acknowledge that the unnecessary dissemination of such

information may result uncalled for ridicule of an inmate. Taking Mr. Hunt’s

allegations as true, as we must, we hold that Mr. Hunt’s contention that the

disclosure of his refusal to take the HIV test is not frivolous, but that it does fail

to state a claim under Dunn, 880 F.2d at 1196 (“In light of the seriousness of the

disease and its transmissibility, we conclude that the prison has a substantial

interest in pursuing a program to treat those infected with the disease and in

taking steps to prevent further transmission. We further conclude that the

prison’s substantial interest outweighs plaintiff’s expectation of privacy.”).

Although, “[t]here is no dispute that confidential medical information is entitled



                                           -6-
to constitutional privacy protection,” A.L.A. v. West Valley City, 26 F.3d 989, 990

(10th Cir. 1994), the disclosure of non-confidential information for the purposes

of a disciplinary write-up does not meet this standard. However, we agree with

the district court that Mr. Hunt’s second claim, that his conviction through the

disciplinary hearing for the refusal to take the test was retaliatory, is frivolous.



      B. Failure to exhaust

      The district court dismissed Mr. Hunt’s third and fourth claims for failure

to exhaust. Pursuant to the Prison Litigation Reform Act of 1995, prisoners

bringing suit under § 1983 must first exhaust available administrative remedies

before seeking relief in federal court. 42 U.S.C. § 1997e(a) (“No 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.”). Full

exhaustion of available remedies is required regardless of the nature of the relief

sought. Booth, 532 U.S. at 741.

      As the district court explained, the Limon Correctional Facility has a multi-

tier approach to resolving inmate complaints. To exhaust available remedies at

the facility, an inmate must (1) attempt to resolve matters informally and (2)

complete the three-step formal grievance procedure. “The response at the third



                                           -7-
and final step of the formal grievance process certifies that the grievance

procedure has been exhausted.” Rec. doc. 11, at 5.

      Mr. Hunt does make scattered references to retaliation and the loss of his

prison job in certain of his grievances, but there is no link between his job

termination and his prior blood-testing grievances. Similarly, as to his denial of

access to the law library claim, there is little if any link to the prior blood-testing

grievances: he specifically mentions it in his Step III grievance, but there is no

mention of it in his Step I or Step II grievance. Finally, as to the equal protection

claim, the record supports the district court’s conclusion that Mr. Hunt did not

exhaust this claim. Thus, the district court correctly dismissed Mr. Hunt’s third

and fourth claims without prejudice.

                                  III. CONCLUSION

      Accordingly, we AFFIRM the district court’s dismissal of Mr. Hunt’s

complaint, albeit for slightly different reasons. We hold that Mr. Hunt failed to

state a claim on count (1), he raised a frivolous claim on count (2), and he failed

to exhaust the prison’s administrative remedies on counts (3) and (4).



                                                 Entered for the Court,


                                                 Robert H. Henry
                                                 Circuit Judge



                                           -8-
