                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                          July 16, 2012
                          UNITED STATES COURT OF APPEALS
                                                       Elisabeth A. Shumaker
                                                                          Clerk of Court
                                       TENTH CIRCUIT



 WILLIE LEE MITCHELL, JR.,

           Plaintiff - Appellant,
 v.                                                             No. 12-6051
 FRED FIGUEROA, Warden; REBECCA                        (D.C. No. 5:10-CV-01320-R)
 WILLIAMS, Trust Account,                                     (W. D. Okla.)

           Defendants - Appellees.



                                    ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.



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

unanimously that oral argument would not materially assist in the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore,

submitted without oral argument.

       Plaintiff Willie Lee Mitchell, Jr., a California state prisoner currently confined in a

privately operated correctional facility in Oklahoma, appeals from the district court’s


       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
dismissal without prejudice of his 42 U.S.C. § 1983 civil rights complaint. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

                                              I

       Mitchell is an inmate in the custody of the California Department of Corrections

and Rehabilitation (CDOC). Mitchell is currently confined at the North Fork

Correctional Facility (NFCF) in Sayre, Oklahoma. NFCF is owned and operated by the

Corrections Corporation of America, Inc. (CCA). CCA has contracted with the CDOC to

house California inmates, such as Mitchell, at NFCF.

       On December 7, 2010, Mitchell, appearing pro se and proceeding in forma

pauperis, initiated these proceedings by filing a civil rights complaint pursuant to § 1983.

The two defendants named in Mitchell’s complaint were Fred Figueroa, the warden at

NFCF, and Rebecca Williams, the facility bookkeeper at NFCF. In his complaint,

Mitchell alleged that Williams, acting on behalf of the CDOC, improperly deducted

money from Mitchell’s prison trust account in order to make payment towards restitutions

and fines associated with Mitchell’s California criminal convictions. Relatedly, Mitchell

complained that NFCF lacked a grievance system that could address the issue, and that

his only avenue of administrative relief was filing a complaint with the California Out of

State Correctional Facility (COCF) Department.

       At the defendants’ request, the magistrate judge assigned to the case directed

NFCF officials to prepare and file a Martinez report. See Martinez v. Aaron, 570 F.2d

317 (10th Cir. 1978) (en banc). Defendants complied with that order and, on July 22,

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2011, filed their Martinez report with the court.

       The Martinez report indicated that, according to the CDOC’s Office of Victim and

Survivor Rights and Services, Mitchell owed restitution in connection with six separate

California convictions. The report listed the amount of restitution that had been withheld

from Mitchell’s wages since his arrival at NFCF. The report also noted that COCF had in

place policies and procedures that allowed inmates at NFCF to seek administrative relief.

Lastly, the report noted that “Mitchell . . . beg[a]n the [administrative] procedure[s], but

did not complete his appeals prior to filing this action with the Court.” ROA, Vol. 1, at

59. More specifically, the reported noted that Mitchell filed a grievance with the COCF

on November 19, 2010, but that the grievance was found to be improperly filed and was

returned to Mitchell with instructions on how to correct and resubmit it.1

       Defendants moved to dismiss Mitchell’s complaint based upon the information

contained in the Martinez report. Defendants argued that Mitchell’s “lack of completion

of the grievance process [could not] be considered ‘sufficient’ or ‘proper’ exhaustion of

administrative remedies,” and that his “lack of completion of the grievance process

clearly constitute[d] a failure by him to first properly exhaust his administrative

remedies.” ROA, Vol. 1, at 112. The magistrate judge converted defendants’ motion to

dismiss to a motion for summary judgment and allowed Mitchell to respond to the motion


       1
         The report also noted that, after filing this action on December 7, 2010, Mitchell
resubmitted his grievance to the COCF on January 19, 2011. The report noted, however,
that “the grievance was not properly completed and [was] again screened out.” ROA,
Vol. 1, at 61.

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with any supporting evidence he might have.

       On January 18, 2012, the magistrate judge issued a thorough report and

recommendation recommending that defendants’ motion be granted and Mitchell’s claims

dismissed without prejudice due to his failure to exhaust his administrative remedies.

Mitchell filed written objections to the report and recommendation. On February 8, 2012,

the district court issued an order adopting the magistrate judge’s report and

recommendation and dismissing Mitchell’s complaint without prejudice for failure to

exhaust. In doing so, the district court found that the undisputed facts established that

“although [Mitchell] attempted exhaustion, [he] did not do so properly nor did he follow

the process through to its completion.” ROA, Vol. 1, at 216.

       Mitchell filed a timely notice of appeal. He has since filed with this court an

opening brief and a motion for leave to proceed in forma pauperis on appeal.

                                              II

       We review de novo a district court’s dismissal of a claim for failure to exhaust

administrative remedies. Patel v. Fleming, 415 F.3d 1105, 1108 (10th Cir. 2005). The

Prison Litigation Reform Act (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). In other

words, exhaustion of available administrative remedies is mandatory under the PLRA, see

Booth v. Churner, 532 U.S. 731, 741 (2001), and the “exhaustion requirement applies to

                                              -4-
all prisoners seeking redress for prison circumstances or occurrences,” Porter v. Nussle,

534 U.S. 516, 520 (2002).

       Having reviewed the record on appeal in this case, we conclude that the district

court properly disposed of Mitchell’s complaint. Although the record indicates that

Mitchell initiated the administrative remedy process on at least two occasions (once

before filing his complaint and once after), the record also indicates that he failed to fully

exhaust the remedies available to him. Thus, the district court was required under the

PLRA to dismiss his complaint. Because the district court dismissed the complaint

without prejudice, Mitchell can refile if and when he actually exhausts his administrative

remedies.

       The judgment of the district court is AFFIRMED. Mitchell’s pleading entitled

“Permission to Amend, clarify of other parties confusion. Opening of my legal mail out

of my presence,” is DENIED. Mitchell’s motion for leave to proceed in forma pauperis

on appeal is DENIED. Appellant is ordered to make immediate payment of the unpaid

balance of the filing fee.



                                                   Entered for the Court


                                                   Mary Beck Briscoe
                                                   Chief Judge




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