                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      January 9, 2007
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 R ICHA RD LEE A LLEN ,

               Plaintiff - Appellant,                   No. 06-6177
          v.                                          (W .D. Oklahoma)
 1998 CHIEF M EDICAL OFFICER;                   (D.C. No. 05-CV -00482-HE)
 JACK GREGSTON, M .D.; M ARK
 FOGLE, M .D.,

               Defendants - Appellees.




                            OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges. **


      Plaintiff-Appellant Richard Lee Allen, a state prisoner appearing pro se,

filed a complaint pursuant to 42 U.S.C. § 1983, alleging that he received

inadequate medical treatment in violation of his constitutional rights during his




      *
        This order and judgment is not binding precedent, except under the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 10 TH C IR . R. 36.3.


      **
        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.
incarceration in a private prison. He appeals the district court’s dismissal without

prejudice for failure to fully exhaust administrative remedies, and the district

court’s denial of his request to appoint counsel. W e exercise jurisdiction pursuant

to 28 U.S.C. § 1291, and affirm.


                                 I. BACKGROUND

      M r. Allen is an inmate in the custody of the Oklahoma D epartment of

Corrections. From August 1998 through M ay 13, 2004, M r. Allen was

incarcerated at the Lawton Correctional Facility (LCF), a private prison.

Throughout his incarceration at LCF, he sought and received treatment for a

deteriorating spinal condition. On M ay 13, 2004, he was transferred to the

Howard M cLeod Correctional Center.

      On November 14, 2004, M r. Allen filed this action, alleging that during his

time at LCF (1) the defendant doctors denied him adequate medical care in

violation of the Eighth Amendment; (2) each defendant was deliberately

indifferent to his medical needs; and (3) the unidentified “1998 Chief M edical

Officer” deprived him of life’s minimal necessities and endangered his present

and future health.

      The defendant doctors filed a motion to dismiss, or alternatively, for

summary judgment, arguing in part that M r. Allen failed to exhaust his

administrative remedies. In his response, M r. Allen sought to amend his



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complaint to add the Director of the O klahoma Department of Corrections as a

defendant and requested that the Department be compelled to provide the acting

Director’s name.

      In a thorough report and recommendation, the magistrate judge

recommended dismissal of all claims. Specifically, the magistrate judge

recommended that the district court (1) dismiss the complaint against the

defendant doctors w ithout prejudice because M r. Allen failed to exhaust all

administrative remedies; (2) dismiss the complaint against the unidentified 1998

Chief M edical Officer without prejudice because M r. Allen failed to timely effect

service under Federal Rule of Civil Procedure 4(m); and (3) deny the motion to

amend because M r. Allen failed to assert that the acting Director of the Oklahoma

Department of Corrections personally participated in the alleged constitutional

deprivations and failed to demonstrate that the claims against the current Director

had been exhausted. The district court adopted the report and recommendation in

full. It also denied M r. A llen’s motion for appointment of counsel.


                                 II. DISCUSSION

                             A. F AILURE TO E XHAUST

      M r. Allen appeals the dismissal without prejudice of his claims against the

defendant doctors, but he does not contest the dismissal of the unidentified 1998

Chief M edical Officer or the denial of his motion to amend.



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       W e review de novo a district court’s dismissal of a complaint for failure to

exhaust administrative remedies. Patel v. Fleming, 415 F.3d 1105, 1108 (10th

Cir. 2005). W e accept M r. Allen’s allegations in his complaint as true, and make

all reasonable factual inferences in his favor. M artinez v. Garden, 430 F.3d 1302,

1304 (10th Cir. 2005). M oreover, we construe his arguments liberally because he

is pro se. Id.

       Section 1997e(a) of the Prison Litigation Reform Act (PLRA) commands

that “‘[n]o action shall be brought with respect to prison conditions’ until a

prisoner exhausts his available administrative remedies.” Steele v. Fed. Bureau of

Prisons, 355 F.3d 1204, 1206 (10th Cir. 2003) (quoting 42 U.S.C. § 1997e(a)).

“[T]he substantive meaning of § 1997e(a) is clear: Resort to a prison grievance

process must precede resort to a court.” Id. at 1207 (internal quotation marks,

brackets, and citation omitted). Additionally, the PLRA contains a total

exhaustion requirement, and “the presence of unexhausted claims in [a prisoner’s]

complaint require[s] the district court to dismiss his action in its entirety without

prejudice.” Ross v. County of Bernalillo, 365 F.3d 1181, 1189 (10th Cir. 2004).

       As the magistrate judge noted, proper exhaustion in this case would have

entailed full compliance with the three-step grievance procedure of the Oklahoma

Department of Corrections as to each of M r. Allen’s claims. On appeal, M r.

Allen concedes that he failed to exhaust that procedure; however, he contends that

“special circumstances . . . could excuse [his] failed efforts to exhaust.” A plt’s

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Br., Attachment 2, at 6. He argues that his “state of mind” and “distressed

condition” during his imprisonment at LCF should exempt him from the

exhaustion requirement. Aplt’s M otion for Leave to Proceed on Appeal W ithout

Prepayment of Costs or Fees, Attachment 2, at 15. He also argues that his

transfer to a new prison in 2004 prevented him from complying with the

Oklahoma Department of Corrections’s grievance process.

      W e must disagree. The Supreme Court has “stress[ed] the point” that we

cannot “read futility or other exceptions into [the PLRA’s] exhaustion

requirement where Congress has provided otherwise.” Booth v. Churner, 532

U.S. 731, 741 n.6 (2001). Thus, “[e]ven where the ‘available’ remedies would

appear to be futile . . . the prisoner must exhaust the administrative remedies

available.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002).

Accordingly, M r. Allen’s admitted failure to fully exhaust all available

administrative remedies cannot be excused, and the district court correctly

dismissed without prejudice M r. A llen’s action against the defendant doctors.

Because M r. Allen’s complaint contains unexhausted claims, it must be dismissed

in its entirety. Ross, 365 F.3d at 1189.

                           B. A PPOINTMENT OF C OUNSEL

      M r. Allen appeals the district court’s denial of his motion to appoint

counsel. Additionally, he has filed a motion in this court requesting the

appointment of counsel on this appeal.

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      “W e review the denial of appointment of counsel in a civil case for an

abuse of discretion.” Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995).

Because M r. Allen failed to exhaust his administrative remedies in conformity

with § 1997e(a), prior to filing suit in federal court, the district court did not

abuse its discretion in denying M r. Allen’s request. Similarly, appointment of

counsel in this appeal is not warranted.


                                   III. CONCLUSION

      Having thoroughly reviewed the magistrate judge’s report and

recommendation, the district court’s order, the parties’ briefs, the record on

appeal, and the pertinent law, we agree with the district court’s ruling and

AFFIRM its dismissal of M r. Allen’s claims without prejudice pursuant to 42

U.S.C. § 1997e(a). Further, M r. A llen’s motion to appoint counsel is DENIED.

W e remind M r. Allen that he must continue making partial payments until the

entire filing fee has been paid.



                                         Entered for the Court


                                         Robert H. Henry
                                         Circuit Judge




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