UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARVIN SEEGARS,

Plaintiff - Appellant,

v.

RON J. WARD

Defendant - Appellee.

No. 03-6032

(D.C. No. 02-CV-735-HE)

(W.D. Oklahoma)

ORDER AND JUDGMENT*

Before EBEL, HENRY, and HARTZ, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not aid in the disposition of this appeal. See Fed. R. App. P. 34(a)(2)(C). The case is therefore ordered submitted without oral argument.

Marvin Seegars, a prisoner in the custody of the Oklahoma Department of Corrections, filed this pro se 42 U.S.C. § 1983 action alleging that amendments to Oklahoma statutes have delayed his consideration for parole, thereby violating the Ex Post Facto Clause of the United States Constitution. Mr. Seegars sought a declaratory judgment and an injunction directing prison officials to promulgate rules and regulations regarding parole procedures. In his complaint, Mr. Seegars acknowledged that he had not pursued administrative remedies, but he contended that to do so would be futile.

The district court adopted the report and recommendation of the magistrate judge and dismissed the complaint without prejudice, reasoning that Mr. Seegars had failed to exhaust administrative remedies. The court noted that the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), contains an exhaustion requirement and that "courts cannot excuse the exhaustion of administrative remedies even if exhaustion would arguably be futile." Rec. doc. 21, at 3 (Dist. Ct. Order, filed Jan. 13, 2003) (citing Porter v. Nussle, 534 U.S. 516, 524 (2002) and Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002)).

We agree with this analysis. Accordingly, for substantially the same reasons set forth in the magistrate's report and recommendation and the district

court's order, we AFFIRM the district court's dismissal of Mr. Seegars' complaint without prejudice.

Entered for the Court,

Robert H. Henry

Circuit Judge