UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MARC PIERRE HALL,

Plaintiff-Appellant,

v.

CITY OF CHARLOTTE, NORTH CAROLINA, a municipality; CHARLOTTE POLICE, Charlotte, North Carolina, Police Department; SCOTT E. SHIPMAN, Detective, in official and individual capacity; JESSEE WALDON and Firm of Partnerships, in official and individual capacity; CHARLES L. MORGAN, Attorney and Firm of Partnerships, et al., in official and individual capacities; JOHN BOUTWELL, Attorney and Firm of Partnerships, et al., in official and individual capacities; JOHN CACHERIS, Attorney and Firm of Partnerships, et al., in official and individual capacities; JAMES GRONQUIST, Attorney and Firm of Partnerships, et al., in official and individual capacities,

Defendants,

and

(FNU) TUCKER, Officer, Bureau of Prisons, in his official and individual capacities; (FNU) MOSS, Officer, Bureau of Prisons, in his official and individual capacities; (FNU) HUGHES, Officer, Bureau of Prisons, in his official and individual capacities,

Defendants-Appellees.

No. 04-3142

(D.C. No. 02-CV-3214-GTV)

(D. Kan.)

ORDER AND JUDGMENT*

Before BRISCOE, ANDERSON, and MURPHY, 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)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

This case originated in the District Court for the District of Columbia where Appellant Marc Pierre Hall, a federal inmate, filed his complaint in 1998. The case was subsequently transferred to the District of Colorado, and was

transferred again to the United States District Court for the District of Kansas. Along the way, various parties and claims were dismissed until the Kansas district court dismissed the remaining claims without prejudice on March 30, 2004.

At the time of the transfer to the Kansas district court, the only defendants remaining in the case were Tucker, Moss, and Hughes, three officers of the United States Penitentiary in Leavenworth, Kansas (subsequently and collectively "Appellees"). Hall sought monetary damages against the officers, claiming they had violated his rights under the Eighth Amendment by assaulting him or failing to intervene to protect him from harm. Appellees moved for summary judgment on the basis that Hall had not properly exhausted his administrative remedies as required by 42 U.S.C. § 1997e.1 Appellees argued that the Supreme Court's opinion in Booth v. Churner, 532 U.S. 731 (2001), required exhaustion, and that Booth overturned this court's ruling in Garrett v. Hawk, 127 F.3d 1263, 1267 (10th Cir. 1997), that exhaustion was not required.2

In his response, Hall acknowledged Booth and agreed that Booth required inmates seeking only monetary damages to exhaust their administrative remedies, but argued that the holding in Garrett had "led [him] to believe that he could in good faith file for money damages in a civil action without exhaustion of remedies" and that Booth should be applied only prospectively and not to "pending civil actions filed in accord with the law that existed . . . some six years prior [to Booth]" to avoid "a discrimination of due process of law and equal protection of the laws and substantial prejudice." R. Doc. 83 at 2.

A month after filing his response, Hall filed a "Motion to Expand the Record with New Evidence as to the Administrative Remedies" in which he

sought to present documents "as evidence against the summary judgment Motion of [Appellees]." R. Doc. 85 at 1. He asserted that such evidence "clearly show[ed] that the remedy had been exhausted under another civil suit of 'Continuous Torts.'" Id. Attached to the motion, inter alia, were a number of administrative claims and appeals to Bureau of Prison officials of all levels, which had been denied or rejected, due to mostly procedural defects, failure to timely file administrative claims, and failure to attach proof of prior administrative complaints.3

The district court, relying on Harper v. Virginia Department of Taxation, 509 U.S. 86 (1993), held that it had to give full effect to the Supreme Court's decision in Booth. R. Doc. 95 at 3. The court also found "no merit to [Hall's] subsequent attempt to exhaust administrative remedies in December 2002," but granted his motion to expand the record to include the documents. Id. The court concluded that the documents "offer[ed] no legal support to [Hall's] showing of . . . exhaustion." Id. The district court granted Appellees' motion for summary judgment on the ground that Hall failed to exhaust his administrative remedies. Id. at 4.

On appeal, Hall reprises his district court argument that Booth should not have been applied to his case to dismiss his claim against Appellees.4

The district court was correct in its reliance on Harper: "'When [the Supreme] Court applies a rule of federal law to the 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 [the] announcement of the rule.'" Talley v. Hesse, 91 F.3d 1411, 1413 (10th Cir. 1996) (quoting Harper, 509 U.S. at 97). Therefore, upon review of the parties' briefs and the record before us, we AFFIRM the district court's order and judgment granting Appellees' motion for summary judgment and dismissing all remaining claims in the complaint without prejudice, for substantially the reasons stated in its May 30, 2004, order. We remind defendant that he remains obligated to make partial payments on his filing fee until the fee is paid. The mandate shall issue forthwith.

Entered for the Court

Stephen H. Anderson

Circuit Judge