                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           NOV 5 2001

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 ALLEN DWAYNE BATES,

          Plaintiff-Appellant,
                                                       No. 01-1306
 v.                                                (D.C. No. 00-Z-1486)
                                                        (Colorado)
 GREGORY DAY; AL HERRERA,

          Defendants-Appellees.




                          ORDER AND JUDGMENT *


Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.


      Mr. Allen D. Bates, a pro se federal prisoner, filed a Bivens action seeking

injunctive and monetary relief alleging that defendants deliberately denied him

necessary medical treatment in violation of the Eighth Amendment. See Bivens v.

Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
The district court initially dismissed the entire claim on the grounds that Mr.

Bates had not exhausted administrative remedies as required under the Prison

Litigation Reform Act (“PLRA” or the “Act”). Prison Litigation Reform Act of

1995, Pub. L. No. 104-134, Title VIII, 110 Stat. 1321 (1996). This court reversed

and remanded as to the damages portion of the claim. See Garrett v. Hawk, 127

F.3d 1263, 1267 (10th Cir. 1997) (holding prisoners are not required to exhaust

administrative remedies for damages claims where monetary relief is not available

through administrative process).

      On remand, the district court again dismissed the damages claim, on the

grounds that an intervening decision of the Supreme Court, Booth v. Churner, 121

S.Ct. 1819 (2001) required administrative exhaustion of the damages claim. The

district court also denied Mr. Bates’ motion to proceed in forma pauperis on the

grounds that Mr. Bates failed to file a financial statement in the required form.

      Mr. Bates appeals the dismissal of his damages claim, and renews his

motion to proceed without prepayment of fees on appeal. For the reasons stated

below, we grant Mr. Bates’ motion to proceed without prepayment of fees and

affirm. We remind him of his continuing responsibility to pay the entire fee as

assessed.

      Mr. Bates’ claim is governed by the Prison Litigation Reform Act, which

covers claims brought “with respect to prison conditions under section 1983 of


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this title, or any other federal law, by a prisoner confined in jail, prison, or other

correctional facility.” See 42 U.S.C. § 1997e(a)(2001). We agree with the

district court that Booth requires the dismissal of Mr. Bates’ claim pending his

exhaustion of administrative remedies.

      In Booth, the Supreme Court held that the Prison Litigation Reform Act

requires prisoners who seek to challenge prison conditions under federal law to

first exhaust administrative remedies for damages claims, even where damages are

not available through the administrative process. 1 Booth, 121 S.Ct. at 1825. Mr.

Bates concedes that he has not exhausted administrative remedies with respect to

his damages claim. He nevertheless contends that Booth does not apply because it

involved a section 1983 action against a state prison and his action is brought

under Bivens. However, Booth merely interpreted the exhaustion requirement of

the Act, and this interpretation applies to any claims brought under the Act. See

id. at 1821. As the Act governs any claims brought under federal law, not just

section 1983 claims, Booth applies to Bivens claims as well. See 42 U.S.C.

1997e(a). See also Garrett, 127 F.3d at 1265.



      In Booth the Court addressed the interpretation of section 1997e(a) of the
      1

PLRA, which provides:
            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 jail, prison, or other correctional facility until such
            administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a).

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      Mr. Bates also contends that because Booth was decided after he filed suit,

we should apply our pre-Booth interpretation of section 1997 under which Mr.

Bates was not required to exhaust administrative remedies for his damages claims.

See Garrett, 127 F.3d at 1267 (holding PLRA does not require administrative

exhaustion of Bivens claims for monetary damages). Unlike legislative

enactments, however, judicial interpretations are given full retroactive effect by

the courts. As we have noted on previous occasions, the Supreme Court has held

with respect to retroactivity,

      When this Court applies a rule of federal law to parties before it,
      that rule is the controlling interpretation of federal law and must be
      given full retroactive effect in all cases still open on direct review
      and as to all events, regardless of whether such events predate or
      postdate our announcement of the rule.

Talley v. Hesse, 91 F.3d 1411, 1413 (10th Cir. 1996) (quoting Harper v. Virginia

Dep’t. of Taxation, 509 U.S. 86, 97 (1993)). Accordingly, because the Supreme

Court has held that the PLRA requires prisoners challenging prison conditions to

exhaust their administrative remedies as to damages claims and he has failed to do

so, we must dismiss Mr. Bates’ damages claim until this requirement is satisfied.

      Finally, Mr. Bates applied for the appointment of appellate counsel. The

appointment of appellate counsel is at the court’s discretion. See 28 U.S.C. §

1915(e)(1). In view of our disposition of the merits of his claim, we deny the

request.


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The dismissal by the district court is hereby AFFIRMED.

                              ENTERED FOR THE COURT


                              Stephanie K. Seymour
                              Circuit Judge




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