PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RICHARD J. MILLER,

Plaintiff-Appellant,

v.

JOHN MENGHINI, President, Impact Design, Inc.; JOSEPH MENGHINI, General Manager, Impact Design, Inc.; DAVID MENGHINI, Supervisor, Impact Design, Inc.; IMPACT DESIGN, INC.; LEONARD L. ELWELL, Director of Administration, Kansas Correctional Industries; DAVID R. MCKUNE, Warden, Lansing Correctional Facility; CHARLES E. SIMMONS, Secretary, Department of Corrections; KANSAS DEPARTMENT OF CORRECTIONS, Landon State Office Building, A. DOE, Assistant Warden of Operations, Lansing Correctional Facility; B. DOE, Assistant Warden of Programs, Lansing Correctional Facility; C. DOE, C. Doe through P. Doe, Lansing Correctional Facility; C. DOE, C. Doe through P. Doe, Impact Design,

Defendants-Appellees.	No. 99-3401

Appeal from the United States District Court

for the District of Kansas

(D.C. No. 99-3249-GTV)

Submitted on the briefs:*

Richard J. Miller, Pro Se.

Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.

SEYMOUR, Chief Judge.

Richard Miller, a pro se prisoner, brought this civil rights complaint under 42 U.S.C. § 1983 asserting numerous constitutional claims related to his private prison industry work assignment. He seeks monetary and injunctive relief. The district court sua sponte dismissed the action under 42 U.S.C. § 1997e(a) based on Mr. Miller' failure to exhaust administrative remedies. We affirm in part, reverse in part, and remand for further proceedings.

Mr. Miller's complaint is governed by section 1997e(a) as amended by the Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, § 803, 110 Stat. 1321 (1996) (PLRA). That section now 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). Mr. Miller contends that in light of Garrett v. Hawk, 127 F.3d 1263 (10th Cir. 1997), dismissal under section 1997e(a) was improper because he is seeking money damages and no administrative procedures are available to provide that relief. We review de novo a dismissal pursuant to section 1997e(a). Id. at 1264.

We addressed section 1997e(a) in Garrett with respect to a Bivens claim brought by a federal prisoner seeking money damages for the alleged violation of his constitutional rights under the Eighth Amendment. We pointed out that under the current version of the statute, exhaustion of administrative remedies is mandatory. Id. at 1265. We further held, however, that if no administrative remedies are available, dismissal under that provision is improper. Id. at 1266. We reversed the dismissal in that case because the plaintiff sought money damages, a remedy that the available administrative procedures did not provide. We concluded "that no exhaustion of administrative remedies is required under PLRA in this case because no such remedies exist to be exhausted." Id. at 1267.

Although in Garrett the plaintiff sought only money damages, we have applied its holding, albeit in unpublished dispositions, in cases where as here the plaintiff seeks both monetary and injunctive relief. See Fever v. Booker, No. 98-
3239, 1999 WL 136922 (10th Cir. Mar. 15, 1999); Florence v. Booker, No. 98-
3153, 1998 WL 694521 (10th Cir. Oct. 6, 1998).1 In those cases, we reversed the dismissal of the monetary claims. While unpublished cases do not constitute precedent, see 10th Cir. R. 36.3, we find these cases persuasive. Although Garrett, Fever and Florence involved Bivens claims brought by federal prisoners in which federal administrative procedures are at issue, we see no reason why their analysis is not also applicable to state prisoners bringing civil rights claims under section 1983 since section 1997e(a) covers both kinds of lawsuits. Accord Booth v. Churner, 206 F.3d 289, 300 (3d Cir. 2000); Rumbles v. Hill, 182 F.3d 1064, 1069 (9th Cir. 1999).

Mr. Miller is not required to exhaust his claim against state prison officials for monetary damages because no available state administrative procedures provide that remedy. In dismissing the entire action, the district court did not distinguish between Mr. Miller's monetary and injunctive claims and did not address the existence or adequacy of state procedures with respect to Mr. Miller's monetary claims. Accordingly, dismissal of those claims was improper. Dismissal of Mr. Miller's claims for injunctive relief, however, was appropriate. See Florence, 1998 WL 694521 at *2.

We REVERSE with respect to Mr. Miller's claims for monetary relief and REMAND those claims for further consideration in light of this ruling. We AFFIRM the dismissal of Mr. Miller's claim for injunctive relief.