Boles v. Romer

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 30 1997 TENTH CIRCUIT PATRICK FISHER Clerk

RUSSELL MARSHALL BOLES,

Plaintiff - Appellant, No. 96-1527 v. (D. Colorado) ROY ROMER, Governor, State of (D.C. No. 96-S-2206) Colorado, I.M. Governor; ARISTEDES ZAVARAS, Colorado Department of Corrections, I.M.; PAUL OPTENER, Park County, I.M. Sheriff; FENTON SECURITIES, INC.; HARVEY DOOLEY; and KERRY BINES,

Defendants - Appellees.

ORDER AND JUDGMENT*

Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.

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); 10th Cir. R. 34.1.9. This cause is therefore ordered

submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Russell Marshall Boles appeals the district court’s order dismissing his 42 U.S.C.

§ 1983 action, which raised several claims concerning the conditions of his confinement.

He brought the action against the Governor of Colorado and various Department of

Corrections officials, including officials at the Park County Detention Center where he is

an inmate. The district court dismissed his complaint without prejudice for failure to

exhaust administrative remedies. In a document the district court construed as a motion

for reconsideration, Mr. Boles argued that officials at Park County Detention Center

“have repeatedly told inmates that Department of Corrections rules and procedures do not

apply,” and that the “Department of Corrections will not respond to complaints by

inmates of this facility being it is privately run.” R., Tab 6 at 2-3. The district court

denied this motion, finding that Mr. Boles presented no new evidence or authority to

support reconsideration of its decision, and stating: “Mr. Boles continues to ignore that

as an inmate in the custody of the Colorado Department of Corrections he has available to

him a grievance procedure. See Colorado Department of Corrections Administrative

Regulation 850-4, effective May 15, 1996.” R., Tab 12 at 3. On appeal, Mr. Boles

restates the arguments raised before the district court in his motion for reconsideration.1

Under 42 U.S.C. § 1997e, as amended by the Prison Litigation Reform Act of

1995, “[n]o action shall be brought with respect to prison conditions under [42 U.S.C.

The district court also found that Mr. Boles cured any deficiencies in his 1

complaint, and Mr. Boles’ arguments that the district court ruled otherwise are misplaced.

-2- § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other

correction facility until such administrative remedies as are available are exhausted.” 42

U.S.C. § 1997e(a). Construing Mr. Boles’ pleadings liberally, as we must, Haines v.

Kerner, 404 U.S. 519, 520-21 (1972), he has failed to make any colorable argument that

he exhausted the Colorado Department of Corrections grievance procedures cited by the

district court. Moreover, he cites no authority or facts, other than his own conclusory

allegations, to show that the defendants denied him access to those grievance procedures.

See Brown v. Zavaras, 63 F.3d 967, 972 (10th Cir. 1995) (conclusory allegations

insufficient to state a cause of action); Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir.

1989) (“Plaintiff's conclusory allegation that his status as an indigent prisoner makes the

state post-deprivation remedy inadequate failed to state a claim for relief under § 1983.”).

Accordingly, the order of the district court dismissing Mr. Boles’ claim without

prejudice is AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge

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