UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ALLEN DWAYNE BATES,

Plaintiff-Appellant,

v.

GREGORY DAY; AL HERRERA,

Defendants-Appellees.	No. 01-1306

(D.C. No. 00-Z-1486)

(Colorado)

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). 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 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.

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.

The dismissal by the district court is hereby AFFIRMED.

ENTERED FOR THE COURT

Stephanie K. Seymour

Circuit Judge