                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                  DEC 20 2004
                                     TENTH CIRCUIT
                                                                              PATRICK FISHER
                                                                                        Clerk

 JOSEPH B. McGEE,

           Plaintiff-Appellant,
 v.                                                             No. 04-1142
 FEDERAL BUREAU OF PRISONS;                                (D.C. No. 03-Z-2522)
 MICHAEL B. COOKSEY, Assistant                                (D. Colorado)
 Director; WARDEN THOMAS;
 CAPTAIN JENKINS; CAPTAIN
 KELLER; S.I.A. CHILDS; S.I.A.
 TORRES; S.I.A. HARRISON,

           Defendants-Appellees.




                                  ORDER AND JUDGMENT*


Before KELLY, BALDOCK, and BRISCOE, Circuit Judges.


       Plaintiff Joseph McGee, a federal prisoner, filed a Bivens action against federal

prison officials alleging violations of his constitutional rights, which included a claim for

violation of the Privacy Act, 5 U.S.C. § 552a, arising out of defendants’ decision to

classify him as a member of the Aryan Brotherhood. The district court dismissed without


       *
        This order and judgment is not binding precedent, except under the doctrines of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.
prejudice his claims under the Privacy Act and the Eighth Amendment for failure to

exhaust administrative remedies, and dismissed his due process claims as legally

frivolous. McGee appeals those rulings. We exercise jurisdiction pursuant to 28 U.S.C.

§ 1291, affirm the dismissal of McGee’s Privacy Act and Eighth Amendment claims for

failure to exhaust administrative remedies, reverse the dismissal of his due process claims

as legally frivolous and remand with directions to dismiss these claims without prejudice

for failure to exhaust administrative remedies.

                                             I.

       On December 5, 2003, McGee filed a pro se complaint against the Federal Bureau

of Prisons (BOP), two BOP officials, and various BOP employees. The following

allegations were contained in that complaint: While McGee was housed at the federal

penitentiary in Leavenworth, Kansas (USP-Leavenworth), he was subpoenaed to testify in

court as a witness for an individual who was a known member of the Aryan Brotherhood

(AB). McGee testified, although prison officials allegedly warned him not to appear and

testify. Upon his return to USP-Leavenworth, he was allegedly placed in confinement

and informed by a prison official that he “had screwed up” and “could join the rest of

them (the Aryan Brotherhood members) since he wanted to help them out so bad.” ROA,

Doc. 2 at 4. He allegedly was further advised that he was going to be officially classified

as a member of the AB and transferred to a more secure facility.

       Although USP-Leavenworth officials allegedly abandoned their attempt to classify


                                             2
McGee as a member of the AB, McGee was transferred to the federal penitentiary in

Florence, Colorado (USP-Florence). In April or early May 2002, McGee was informed

by prison officials that he had been officially classified as a member of the AB.

Approximately one month later, confidential papers from McGee’s prison file were

allegedly left in the inmate law library by staff members as a result of “mishandling and

neglect,” and were subsequently circulated among the inmate population at USP-

Florence. Id. at 10. The file included, in pertinent part, “a statement that alleged

[McGee] admitted he in fact was A/B and agreed to . . . cooperate with the government.”

Id. at 9. McGee was immediately transferred to the special housing unit at the Federal

Correctional Institution at Florence (FCI-Florence) for his protection.

       In June 2002, shortly after his transfer to FCI-Florence, McGee was transferred to

the federal penitentiary in Coleman, Florida (USP-Coleman), and placed in general

population. According to the complaint, officials at USP-Coleman “were aware of

plaintiff’s need for protection and did nothing to protect” him. Id. at 10. Between

October 2002 and March 21, 2003, several inmates, all alleged AB members, were

transferred from USP-Florence to USP-Coleman. According to McGee, he was

transferred to USP-Coleman for protection from these same inmates.

       In approximately December 2002, several inmates informed USP-Coleman

officials about a “hit” on McGee’s life, but the officials took no action in response to that

information. On March 21, 2003, McGee was attacked and stabbed six times. Since the


                                              3
attack, McGee has been placed in a cell with two inmates from whom he required

protection.

       Based upon these factual allegations, McGee’s complaint asserted three general

claims. First, the complaint asserted that prison officials at USP-Florence violated the

Privacy Act by disclosing his classification as an AB member to other inmates. Second,

the complaint alleged the classification violated his due process rights. Third, the

complaint (together with an amended complaint McGee filed on January 15, 2004)

alleged that defendants violated his Eighth Amendment rights by (a) falsifying documents

classifying him as a member of the AB, (b) allowing this falsified information to reach

other inmates, (c) housing him, both in general population and in some instances in the

same cell, with inmates known to be a threat to him because of his classification as an AB

member, (d) failing to take any steps to protect him after learning a “hit” had been placed

on his life as a result of his classification as an AB member, (e) failing to protect him

from an actual assault that occurred on March 21, 2003, and (f) failing to provide him

with adequate medical care for the stab wounds he incurred during the March 21, 2003,

assault.

       The district court dismissed McGee’s claims. With respect to the Privacy Act and

Eighth Amendment claims, the district court concluded that McGee had failed to

adequately exhaust his administrative remedies by asserting those claims at every level of

the administrative review process. As for the alleged due process violations, the district


                                              4
court concluded they were legally frivolous under 28 U.S.C. § 1915A(b). Specifically,

the district court concluded “McGee was not deprived of life or property as a result of his

classification as a member of the Aryan Brotherhood,” there was no “indication that . . .

McGee’s classification . . . impose[d] any atypical and significant hardship [on him] in

relation to the ordinary incidents of prison life,” and “no indication that [his]

classification inevitably w[ould] affect the length of his confinement.” ROA, Doc. 12 at

6-7.

       McGee filed a timely notice of appeal, followed by a pro se appellate brief

challenging all aspects of the district court’s order of dismissal. We appointed counsel to

represent McGee and directed counsel to file a supplemental brief addressing the district

court’s dismissal of his alleged due process violations.1

                                              II.

                       Privacy Act and Eighth Amendment Claims

       In his pro se appellate brief, McGee contends the district court erred in dismissing

without prejudice his Privacy Act and Eighth Amendment claims for failure to exhaust

administrative remedies. We review de novo a district court’s finding of failure to

exhaust administrative remedies. See Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th

Cir. 2002).



       1
         We note that by our order the government has been required to brief and orally
argue a case in which none of the named defendants have ever been served.

                                               5
       It is well established that a plaintiff seeking to assert either a Bivens claim or a

claim under the Privacy Act must first exhaust all available administrative remedies. E.g.,

Yousef v. Reno, 254 F.3d 1214, 1216 n.1 (10th Cir. 2001) (dismissing Bivens action for

failure to exhaust administrative remedies); Taylor v. United States Treasury Dep’t, 127

F.3d 470, 476-78 (5th Cir. 1997) (dismissing Privacy Act claim for failure to exhaust).

Moreover, the Prison Litigation Reform Act of 1996 (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).

A complaint “that fails to allege the requisite exhaustion of remedies is tantamount to one

that fails to state a claim upon which relief may be granted.” Steele v. Fed. Bureau of

Prisons, 355 F.3d 1204, 1210 (10th Cir. 2003) (internal quotations omitted). An inmate

must not only adequately plead exhaustion, but must also attach copies of the “applicable

administrative dispositions to the complaint.” Id. (internal quotations omitted).

       The BOP maintains a four-step procedure for processing inmate grievances. The

inmate must first attempt to resolve his complaint informally with his prison counselor.

28 C.F.R § 542.13. If unable to reach an informal resolution, the inmate may then direct

his complaint to the warden of his institution through a written administrative remedy

request. 28 C.F.R §§ 542.13, 542.14. After the warden’s response, if still unsatisfied, the

prisoner may submit an appeal to the regional director. 28 C.F.R. § 542.15(a). Finally,


                                               6
the inmate may appeal to the office of general counsel in Washington, D.C. 28 C.F.R.

§ 542.15. Each stage of the process has its own time limits and procedural instructions,

and inmates are required to adhere to them.

       After carefully examining the record on appeal, we conclude that McGee has

failed to exhaust his administrative remedies with respect to his Privacy Act claim.

Although McGee filed three official grievances (plus what appear to have been at least

two requests filed directly, and thus improperly, with the regional director) concerning his

classification as a member of the AB, none of those grievances alleged any Privacy Act

violations.2 More specifically, none of McGee’s grievances mentioned his classification


       2
          McGee’s first grievance was filed on April 28, 2002, and was assigned case No.
266711-F1. It challenged his classification as an AB member and requested a transfer to
a federal correctional institution. The warden at USP-Florence denied that grievance on
the grounds that McGee met the BOP’s “criteria to be classified as a Validated Member
of” the AB. ROA, Doc. 10, attachment. McGee thereafter failed to exhaust his
administrative remedies with respect to this case.
        McGee’s second grievance was filed on May 15, 2002, and assigned case No.
268974-F1. The grievance challenged his classification as an AB member and stated that
the “classification needlessly endanger[ed] [McGee’s] life.” Id. The warden at USP-
Florence rejected the grievance on the same grounds as the first grievance. Although
McGee appealed the denial to the regional director and the office of general counsel, it
does not appear that his appeals were resolved on the merits. Instead, it appears they
were rejected on procedural grounds.
        McGee’s third grievance was filed on September 25, 2002 and assigned case No.
278816-F1. It challenged his classification as an AB member, but made no mention of
his life being in danger. The warden at USP-Coleman denied the grievance on October
21, 2002, concluding McGee satisfied BOP criteria for being classified as a member of
the AB. McGee subsequently exhausted his administrative remedies in this case. In his
appeal to the office of general counsel, McGee stated for the first time that his
classification as an AB member endangered his life and placed unwarranted restrictions
on his custody.

                                              7
information being leaked to other inmates. Thus, the district court properly dismissed that

claim without prejudice due to McGee’s failure to exhaust.

       We reach the same conclusion with respect to McGee’s Eighth Amendment

claims. In each of his three grievances, McGee asserted his classification as an AB

member was wrong. In none of them, however, did he assert that prison officials (a)

knowingly falsified his classification, (b) leaked his classification information to other

inmates, (c) housed him with inmates known to be a threat to him, or (d) failed to take

necessary steps to protect him from violence as a result of the classification. At best,

McGee’s second grievance (assigned case No. 268974-F1) stated the classification

“needlessly endanger[ed] his life.” ROA, Doc. 10 attachment. This assertion, however,

was not sufficient in our view to alert prison officials to the existence of the Eighth

Amendment violations alleged in McGee’s complaint and amended complaint. As for the

Eighth Amendment claims pertaining to the March 21, 2003, assault and the alleged

inadequate follow-up medical care for injuries sustained in that assault, McGee filed no

administrative grievances. Indeed, all three official grievances predated the March 21,

2003, assault. Thus, we conclude the district court properly dismissed McGee’s Eighth

Amendment claims without prejudice due to his failure to exhaust administrative

remedies.

                                    Due Process Claims

       McGee’s pro se complaint generally alleged a violation of his due process rights


                                              8
arising out of his classification as an AB member. The district court, presumably

attempting to decipher the precise nature of the alleged violations, concluded they were

legally frivolous under 28 U.S.C. § 1915A(b). In the supplemental brief filed by

appointed counsel, McGee challenges the district court’s conclusion, but in doing so

provides substantially more detail regarding the alleged violations. In particular, McGee

makes reference to both procedural and substantive due process violations that allegedly

arose out of his classification. Although we generally do not address new theories on

appeal, e.g., Okland Oil Co. v. Conoco Inc., 144 F.3d 1308, 1314 n.4 (10th Cir. 1998), we

will, out of an abundance of caution given the circumstances of this case, proceed to

address the specific due process violations asserted in McGee’s supplemental brief. For

the reasons outlined below, we conclude those alleged violations have not been

administratively exhausted and must be dismissed without prejudice.

       Procedural due process violations – In the supplemental brief, McGee makes at

least a passing reference to a denial of procedural due process when he alleges that his

classification as an AB member was “an extraordinary restraint on [his] liberty that

call[ed] for a reasonably prompt hearing and periodic review.” Supp. Aplt. Br. at 32. It is

clear, however, that this allegation was never presented to prison authorities via the

administrative remedy process. Thus, it is unexhausted and must be dismissed without

prejudice.

       Substantive due process violations – As regards a violation of substantive due


                                              9
process rights, McGee states his “right to life and personal security are protected by the

due process clause, and are directly implicated by his mis-classification as a member of

the” AB. Supp. Aplt. Br. at 11. In addition, McGee argues that “prison classification as a

member of a hate group that defines itself as a religious organization implicates liberty

interests and other fundamental constitutional rights in a way that typical administrative

classifications do not, and triggers the protection of the due process clause.” Id.

       The problem, again, is that McGee has not exhausted these claims via the

administrative remedy process. Indeed, the only “claim” that has actually been pursued

by McGee through all of the proper administrative remedy steps is his assertion that he

was improperly classified as a member of the AB. Although at certain times he also

mentioned that his classification as an AB member placed him in danger, he never fully

exhausted that claim by pursuing it through all levels of the administrative remedy

process. Thus, we conclude McGee’s claim that defendants violated his right to personal

safety has not been properly exhausted and should be dismissed without prejudice.

       We reach the same conclusion with regard to McGee’s claim that the classification

violated his liberty interest by requiring him to be housed at a maximum security facility.

In the final step of the one grievance that he fully exhausted, McGee alleged for the first

time that his classification placed unwarranted restrictions on his custody. In denying

McGee’s appeal, the administrator of the National Inmate Appeals process did not

address this new issue, and instead only addressed McGee’s assertion that he had been


                                             10
improperly classified. Thus, the claim remains unexhausted and must be dismissed

without prejudice.

      The dismissal of McGee’s Privacy Act and Eighth Amendment claims is

AFFIRMED. The dismissal of his due process claims as legally frivolous is REVERSED

and REMANDED with directions to the district court to also dismiss McGee’s due

process claims without prejudice for failure to exhaust administrative remedies.

                                                 Entered for the Court

                                                 Mary Beck Briscoe
                                                 Circuit Judge




                                            11
