                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                         NOV 15 2001
                   UNITED STATES COURT OF APPEALS

                          FOR THE TENTH CIRCUIT                      PATRICK FISHER
                                                                              Clerk


 VERYL D. CRAWFORD,

              Plaintiff - Appellant,

 v.                                                     No. 01-3265
                                                  (No. 01-CV-3244-GTV)
 ALLAN DALE FRASIER, Plant                          (District of Kansas)
 Manager, Century Manufacturing Inc.,
 El Dorado, KS; ROBERT SAPIEN,
 Unit Team Manager, El Dorado
 Correctional Facility,

              Defendants - Appellees.




                           ORDER AND JUDGMENT           *




Before EBEL , KELLY , and LUCERO , Circuit Judges.



      Plaintiff Veryl D. Crawford, proceeding pro se, appeals the district court’s

dismissal of his prisoner’s civil rights complaint pursuant to 42 U.S.C. § 1983, for



      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
failure to exhaust administrative remedies and failure to state a claim for relief.

We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm, but we remand

with instructions to modify the judgment.

      Plaintiff is incarcerated in the El Dorado Correctional Facility (“EDCF”) in

El Dorado, Kansas. In his complaint, he seeks damages for the alleged violation

of his constitutional rights concerning a workplace incident that resulted in

disciplinary action being taken against him.

      In June 1999, plaintiff was employed at Century Manufacturing, a private

prison industry associated with the EDCF facility. After a verbal altercation with

one of Century’s supervisors, plaintiff was removed from his work assignment by

Allan Dale Frasier, the plant manager. Plaintiff received a work performance

disciplinary report, which he claims was based on a false charge. He was found

guilty of the offense specified in the charge and sanctioned with the loss of sixty

days of good time.

      Plaintiff sought damages in district court from Robert Sapien, his EDCF

unit team manager, for failing to investigate adequately the workplace

disciplinary report, failing to protect him from the false charge, and failing to

restore him to his workplace assignment. Plaintiff, who is African American, also

seeks damages from plant manager Frasier for having treated him differently from

white inmates who were either not fired or were later rehired.


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       Plaintiff first contends that the district court erred in dismissing his

complaint for failure to exhaust administrative remedies. We review de novo a

dismissal for failure to exhaust.   See Miller v. Menghini , 213 F.3d 1244, 1246

(10th Cir. 2000). Before both the district court and this Court, plaintiff has

documented his failure to exhaust the prison’s administrative grievance

procedure, but has argued that no formal exhaustion of administrative remedies is

required. Prisoners bringing 42 U.S.C. § 1983 c    laims must, however, exhaust

available administrative remedies before proceeding 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 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 provision requires full exhaustion of the

available formal grievance procedure, regardless of the nature of the relief being

sought. See Booth v. Churner , 121 S. Ct. 1819, 1825 (2001) (holding exhaustion

requirement of 42 U.S.C. § 1997e(a) applicable even where prisoner seeks only

monetary relief). Here, plaintiff has not fully and completely exhausted available

administrative remedies. Thus, the district court properly held that he may not

proceed on his claims in federal court.

       Plaintiff next suggests that the district court erred in dismissing his

complaint against Century plant manager Frasier for failing to state a claim for


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relief. We review de novo a dismissal for failure to state a claim.         See Perkins v.

Kan. Dep’t of Corrs. , 165 F.3d 803, 806 (10th Cir. 1999) (a         pplying de novo

review to dismissals under § 1915(e)). To the extent plaintiff seeks damages from

Frasier as a private individual and not a person acting under color of state law, no

claim for relief can be stated under 42 U.S.C. § 1983.           See West v. Atkins , 487

U.S. 42, 48 (1988) (“To state a claim under § 1983, a plaintiff must allege the

violation of a right secured by the Constitution and laws of the United States, and

must show that the alleged deprivation was committed by a person acting under

color of state law.”). Moreover, as the district court noted, even if state action

and the lack of administrative remedies in this prison related industry were to be

presumed, plaintiff’s broad and conclusory allegations of racial discrimination

and retaliation by Frasier would not state a claim for relief.        See Hall v. Bellmon ,

935 F.2d 1106, 1110 (10th Cir. 1991) (conclusory allegations are insufficient to

state a claim on which relief can be based). The district court thus committed no

error.

         Plaintiff also argues that the district court abused its discretion in

dismissing his complaint without affording him notice and an opportunity to be

heard in opposition. A prisoner’s complaint that fails to state a claim for relief

may be dismissed at any time by the district court.       See 28 U.S.C. § 1915(e)(2)

(“Notwithstanding any filing fee, or portion thereof, that may have been paid, the


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court shall dismiss the case at any time if the court determines that . . . the action

or appeal . . . fails to state a claim on which relief may be granted.”). The district

court’s dismissal of plaintiff’s complaint against Frasier was thus proper. In

addition, although the dismissal provision of § 1915(e)(2) does not authorize the

court’s sua sponte dismissal of a prisoner’s claims due to lack of exhaustion of

administrative remedies, courts may dismiss actions on their own motion in a

broad range of circumstances where they are not explicitly authorized to do so by

statute or rule.   See, e.g. , Link v. Wabash R.R. Co. , 370 U.S. 626, 629–32 (1962)

(district court has inherent power to dismiss sua sponte for failure to prosecute);

Costello v. United States , 365 U.S. 265, 286–87 (1961) (district court may

dismiss sua sponte for plaintiff’s failure to comply with an order of the court). In

his brief before the district court in the present case, plaintiff fully documented

his failure to exhaust the administrative remedies available to him and fully

argued that his failure to exhaust should be excused. Under these circumstances,

the district court’s sua sponte dismissal was proper and did not prejudice plaintiff.

       Plaintiff is correct, however, that the district court did not make clear

whether his claims against Sapien and Frasier were dismissed with or without

prejudice. With respect to plaintiff’s complaint against Frasier, dismissal for

failure to state a claim should be with prejudice. With respect to plaintiff’s

complaint against Sapien, dismissal for failure to exhaust should be without


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prejudice.

      Finally, we note that the district court granted plaintiff’s application to

proceed without prepayment of the appellate filing fee. Plaintiff’s motion before

this Court to proceed without prepayment of costs will thus be denied as moot.      1



      We AFFIRM the district court but REMAND with directions to modify the

judgment to reflect that plaintiff’s complaint against defendant Frasier is

dismissed with prejudice, and that his complaint against defendant Sapien is

dismissed without prejudice. Plaintiff’s Motion for Leave to Proceed on Appeal

without Prepayment of Costs or Fees is     DENIED .

      The mandate shall issue forthwith.



                                                       Entered for the Court,



                                                       Carlos F. Lucero
                                                       Circuit Judge




      1
         We also note that plaintiff, as per the district court’s order of August 17,
2001, must continue making partial payments for his district court and appellate
filing fees until the entire balance of these fees is paid.

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