                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 30 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    EDMUND C. JONES,

                Plaintiff-Appellant,

    v.                                                  No. 03-3176
                                                 (D.C. No. 01-CV-3314-JWL)
    DAVID THEODOROFF, PAUL                                (D. Kan.)
    MILLER and SHAWN WILLIAMS,
    Correctional Officers, Bureau of
    Prisons, U.S.P., Leavenworth; and
    S. GRANT, Lieutenant, Bureau of
    Prisons, U.S.P., Leavenworth,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before SEYMOUR , Circuit Judge, BRORBY , Senior Circuit Judge, and
HENRY , 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      This order and judgment is not binding precedent, except under the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.
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.

      Pro se plaintiff Edmund C. Jones appeals from the district court’s order

denying his Fed. R. Civ. P. 60(b) motion. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm the district court.

      Mr. Jones, an inmate in the United States Penitentiary in Leavenworth,

Kansas, brought a Bivens 1 action alleging that defendants Officers David

Theodoroff, Paul Miller and Shawn Williams assaulted him and subjected him to

excessive force in violation of the Eighth Amendment while escorting him to a

disciplinary hearing and that Officer Theodoroff later retaliated against him by

depriving him of recreational time and other benefits in violation of his

constitutional rights. Mr. Jones further alleged that defendant Lieutenant S. Grant

was aware of the alleged harassment by Officer Theodoroff, but refused to

intervene. In their motion for summary judgment, defendants contended that

Mr. Jones had failed to exhaust his administrative remedies with respect to the

retaliation claim. Without providing any evidence of exhaustion, Mr. Jones

replied in a conclusory fashion that he had exhausted all available remedies and

that prison officials had prevented him from exhausting his administrative



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

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remedies. The district court granted defendants’ summary judgment motion and

dismissed the action without prejudice because Mr. Jones had not administratively

exhausted the retaliation claim. The court determined that the Prison Litigation

Reform Act (PLRA), 42 U.S.C. § 1997e(a), requires total exhaustion of all

available administrative remedies for all claims before the court will entertain a

prisoner’s Bivens action concerning prison conditions.     See Ross v. County of

Bernalillo , 365 F.3d 1181, 1182, 1184, 1188-90 (10th Cir. 2004) (holding, after

district court entered its decision in this case, that § 1997e(a) requires total

exhaustion).

      Subsequently, Mr. Jones filed a motion for reconsideration under

Rule 60(b), asserting that prison officials had prevented him from exhausting the

retaliation claim, because, as part of the ongoing pattern of harassment and

retaliation, they failed to provide him with proper paperwork to complete the

administrative process and because he was transferred to Pennsylvania where he

had no access to his legal materials. Finding that Mr. Jones failed to demonstrate

entitlement to relief under Rule 60(b), the district court denied the motion.




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       On appeal, 2 Mr. Jones argues the district court erred in denying relief under

Rule 60(b)(1), (3), or (6)   3
                                 for these reasons: (1) prison officials precluded him

from exhausting his retaliation claim because the Regional Office did not advise

him he could appeal its decision and because he was removed from Leavenworth

on a state writ to Pennsylvania, where he remained for one year without access to

the documents related to his complaints, and thus he should be deemed to have

exhausted all available administrative remedies; (2) exhaustion would be futile

since the time to file an appeal has passed; (3) the district court failed to advise

him that he could amend his complaint to eliminate the unexhausted claim; (4) the

district court failed to recognize that the retaliation claim was residual to the

excessive force claim; and (5) the district court failed to conduct a hearing before

ruling on the Rule 60(b) motion.

       “We review the district court’s denial of a Rule 60(b) motion for abuse of

discretion.”   Servants of Paraclete v. Does        , 204 F.3d 1005, 1009 (10th Cir. 2000).

Rule 60(b) “relief is extraordinary and may only be granted in exceptional



2
      Mr. Jones recognizes in his notice of appeal that his appeal raises for
review only the district court’s denial of Rule 60(b) relief, not the underlying
judgment. See Van Skiver v. United States , 952 F.2d 1241, 1243 (10th Cir. 1991).

3
       Although Mr. Jones failed to indicate before the district court which
subsections of Rule 60(b) he relied on, the court, recognizing Mr. Jones’ pro se
status, considered subsections (1), (2), (3), and (4). Before this court, Mr. Jones
eliminates (2). Thus, we limit our review to the other three subsections.

                                              -4-
circumstances.”     Id. (internal quotations omitted). Thus, we will reverse the

district court’s determination “only if we find a complete absence of a reasonable

basis and are certain that the . . . decision is wrong.”   Yapp v. Excel Corp. ,

186 F.3d 1222, 1232 (10th Cir. 1999) (internal quotation omitted).

       Rule 60(b)(1) provides that a district court may grant relief from a

judgment due to “mistake, inadvertence, surprise or excusable neglect.” “[T]he

‘mistake’ provision in Rule 60(b)(1) provides for the reconsideration of

judgments only where: (1) a party has made an excusable litigation mistake . . .,

or (2) where the judge has made a substantive mistake of law or fact in the final

judgment or order.”     Cashner v. Freedom Stores, Inc     ., 98 F.3d 572, 576 (10th Cir.

1996). Mr. Jones does not argue that he made a litigation mistake or that the

district court made a substantive mistake of law or fact. As the district court

found, Mr. Jones had ample opportunity to set forth evidence to show that the

prison officials interfered with his ability to exhaust administrative remedies, but

he did not do so.   See Van Skiver , 952 F.2d at 1243 (recognizing

inappropriateness of presenting new arguments and supporting facts available at

time of briefing summary judgment motion for first time in Rule 60(b) motion).

       Under Rule 60(b)(3), relief from judgment may be available based on fraud,

misrepresentation or misconduct of the defendants. Mr. Jones’ assertion of

interference by prison officials is insufficient to present clear and convincing



                                              -5-
evidence of fraud, misrepresentation or misconduct by defendants.        See Anderson

v. Dep’t of Health & Human Servs.     , 907 F.2d 936, 952 (10th Cir. 1990) (requiring

“clear and convincing proof” under Rule 60(b)(3)). Even if prison officials had

interfered with his ability to administratively exhaust his remedies, again,

Mr. Jones should have set forth this information in his response to defendants’

motion for summary judgment.

       Rule 60(b)(6) permits relief for “any other reason justifying relief.”

Mr. Jones “has failed to show that the district judge made a definite, clear, or

unmistakable error in denying” relief under Rule 60(b)(6).       Yapp , 186 F.3d

at 1232. We agree with the district court that Mr. Jones did not allege any

circumstances warranting relief, nor did he assert a change of circumstances since

the district court entered its judgment.

       The Supreme Court has rejected Mr. Jones’ futility argument.        See Booth v.

Churner , 532 U.S. 731, 740-41 & n.6 (2001);      Jernigan v. Stuchell , 304 F.3d 1030,

1032-33 (10th Cir. 2002) (citing    Booth ). Mr. Jones’ beginning the grievance

process but failing to complete it bars him “from pursuing a [     Bivens ] claim under

PLRA for failure to exhaust his administrative remedies.”        Jernigan , 304 F.3d

at 1032.

       We will not consider Mr. Jones’ argument that the district court should

have advised him he could amend his complaint, because it was not presented to



                                            -6-
the district court during the Rule 60(b) proceedings.       See Walker v. Mather (In re

Walker) , 959 F.2d 894, 896 (10th Cir. 1992). In any event, the district court

correctly dismissed Mr. Jones’ action without prejudice, and Mr. Jones can file

another complaint asserting his exhausted claim, if he chooses to do so.

       Finally, Mr. Jones argues that the district court should have afforded him a

hearing because the retaliation claim was merely a residual effect of the excessive

force claim and that the district court should have considered his pro se status.

Under the circumstances presented here, we conclude the district court did not

abuse its discretion in denying a hearing.    See Steele v. Fed. Bureau of Prisons     ,

355 F.3d 1204, 1214 (10th Cir. 2003). The district court expressly stated it was

liberally construing Mr. Jones’ pro se pleadings,       see R., vol. 2, doc. 60 at 6, and

our review of the record convinces us the court did so.

       Because we can discern no exceptional circumstances warranting

Rule 60(b) relief in this case, we conclude the district court did not abuse its

discretion in denying such relief.




                                             -7-
      The district court’s order is AFFIRMED. We GRANT Mr. Jones

permission to file his reply brief out of time, but DENY his request for counsel.

Also, we GRANT him leave to proceed on appeal without prepayment of costs

and fees and note that the entire fee has now been paid in full. The mandate shall

issue forthwith.


                                                    Entered for the Court



                                                    Robert H. Henry
                                                    Circuit Judge




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