UNITED STATES COURT OF APPEALS TENTH CIRCUIT

MARIO ANTON LEE, Plaintiff - Appellant,

v. BENUELOS, Lieutenant; BERRY, Lieutenant; M. EBENHART, Officer; ERPS, Officer; HUDDLESTON, Nurse (EMT); LENGREN, Nurse; LEE, Officer; LITVAN, Lieutenant; MARTINEZ, Lieutenant; MOHLER, Officer; ROY, Officer; SHORT, Officer; THOMPSON, P.A.; J. WISEMAN, Officer; McDERMOTT, Medical Director, all in their individual and official capacities, Defendants - Appellees. No. 14-1249 (D.C. No. 1:13-CV -01895-CMA-MJW) (D. Colorado)

ORDER AND JUDGMENT *

Before GORSUCH , MURPHY and McHUGH , Circuit Judges.

After examining the briefs and appella te record, this panel has determined unanimously that oral argument would not materially assist in the determination of this

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 2, 2014
Elisabeth A. Shumaker Clerk of Court-2- appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Mario Anton Lee, a federal prisoner proceed ing pro se, appeals the district court’s orders dismissing his complaint on the basis that he failed to exhaust his administrative remedies as required by the Pr ison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e. Exercising jurisdiction pur suant to 28 U.S.C. § 1291, we affirm. BACKGROUND I. Mr. Lee is currently incarcerat ed in a federal correctiona l institution located in Florence, Colorado (FCI Florence). He filed su it in the United States District Court for the District of Colorado pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971), alleging that from February 8 through February 9, 2013, various pris on officials (collectively, D efendants) violated his Eighth Amendment rights when they assaulted him, restrained him, and failed to treat his resulting injuries. Before fili ng suit in federal court, Mr. Lee attempted to obtain administrative review of his claims agains t Defendants through th e Bureau of Prison’s (BOP) internal grievance process. To put our analysis in cont ext, we briefly describe the prison’s internal grievance process before delv ing into Mr. Lee’s efforts to exhaust those administrative remedies. The BOP employs a four-step process to add ress inmate claims. Th e first step is an informal grievance resolution process. 28 C.F.R. § 542.13(a). If the a ttempt at informal resolution is unsuccessful, an inmate must next file with the warden of the institution a-3- formal “Administrative Remedy Request” with in twenty days from the date on which the basis for the complaint occurred. Id. § 542.14(a). An inmate dissatisfied with the institution’s response to the Administrative Re medy Request must appeal that decision to the appropriate regional director within twenty days. Id. § 542.15(a). Finally, if dissatisfied with the regional director’s response, the inmate must submit a second appeal to the BOP’s general counsel (i.e., th e Central Office) within thirty days. Id. The appeal to the Central Office is the final level of ad ministrative appeal available to an inmate. See id. With respect to each of th e administrative deadlines, the regulations give prison officials the discretion to excuse an untimel y filing “where the inmate demonstrates a valid reason for delay.” Id. §§ 542.14(b), 542.15(b). “Valid reasons for delay include . . . an unusually long period taken for informal resolution attempts.” Id. § 542.14(b). The BOP encourages officials to be “flexible” wh en deciding whether to reject a submission as untimely, “keeping in mind that major purpose s of [the grievance process] are to solve problems and be responsive to issues inmates raise.” Patel v. Fleming , 415 F.3d 1105, 1110 & n.6 (10th Cir. 2005) (quoting BOP Program Statement 1330.13(11)(b)(3) (2002)). Therefore, the BOP advises that “cons ideration should be given to accepting a [r]equest or [a]ppeal that raises a sensitiv e or problematic issue, such as medical treatment . . . [or] staff misconduct, even though the submission may be somewhat untimely.” Id. at 1110 n.6 (quoting BOP Progra m Statement 1330.13(11)(b)(3)). Where an inmate appeals a rejection of a request on the basis that it is untimely, prison officials-4- “may affirm the rejection, may direct that the submission be accepted at the lower level (either upon the inmate’s resubmission or dir ect return to the lower level), or may accept the submission for filing.” BOP Program Statement 1330.13(11)(c). Pursuant to the four-step process, Mr. L ee attempted to exhaust his administrative remedies with respect to the alleged assau lt by filing two internal administrative remedy requests. First, in claim number 729465, Mr. Lee alleged that from Fe bruary 8 through 9, 2013, prison staff assaulted him, unlawfully restrained him, and fa iled to provide him necessary medical care. In a related clai m (number 730994), Mr. Lee requested that prison staff retain video footage depicting his cell on the date of February 8, 2013. Because staff was unavailable to immediately a ssist Mr. Lee with th e informal grievance process on either claim, Mr. Lee was unable to submit his formal Administrative Remedy Requests (the Requests) until after the twenty-day deadline had expired. Accordingly, FCI Florence rejected both Requests as untimely. 1 Mr. Lee appealed these decisions to the regional director, who concurred with the institution’s reasons for rejection and stated the Requests were untimely. Mr. Lee also appe aled these decisions to the Central Office, which agreed with FCI Floren ce that the Requests were un timely. However, consistent

1 FCI Florence also rejected the Request for claim number 729465 because it was not submitted through a counselor and was improperly submitted th rough institutional mail. In addition, although FCI Florence rejected the Request for claim number 730994 as untimely because “the alleged issue took place in January 2013, well over 20 days ago,” ROA Vol. I 530, careful review of the record indicates Mr. Lee sought video footage of the February 2013 incident. This discrepancy does not affect our analysis because Mr. Lee’s Request was untimely using either a January or the February date.-5- with the regulations and progra m statement, which allow prison officials in some cases to excuse untimely filings, the Central Office di rected Mr. Lee to provide staff verification to explain the reasons for his untimely filing. Mr. Lee complied with this direction and obtained from prison staff memoranda explaining that his Requests were untimely due to staff unavailability. The memoranda asked prison officials to “accept his [Reque sts] without penalty of an untimely filing.” Mr. Lee then resubmitted his Requests, along with the staff memora nda, to the Central Office. The Central Office again rejected Mr. Lee’s Requests, this time not because they were untimely, but because they were submitt ed at the wrong administrative level. It advised Mr. Lee to resubmit the Requests along with the staff memora nda directly to FCI Florence. Rather than resubmit the Requests to th e institution as directed, Mr. Lee initiated the instant suit. The district court referred the case to a magistrate judge for initial proceedings and Defendants mo ved for summary judgment, asserting Mr. Lee had failed to exhaust his administrative remedies. Wit hout conducting a hearing, the magistrate judge recommended that Defendants’ motion fo r summary judgment be granted and the case be dismissed. It determined Mr. Lee did not exhaust his administrative remedies prior to filing suit because he failed to refile his Requests at the institutional level as directed. The district court adopted the ma gistrate judge’s report and recommendation over Mr. Lee’s objections and dismissed the case without prejudice. Mr. Lee appeals, asserting the district court improperly dismis sed his complaint, without first conducting a-6- hearing, based on his failure to e xhaust. He also claims that rather than dismiss, the court should have stayed pr oceedings for ninety da ys pending exhaustion. DISCUSSION II. A. Standard of Review We review the district court’s decision to grant Defendants su mmary judgment on the basis of Mr. Lee’s failure to exhaus t his administrative remedies de novo. See Fitzgerald v. Co rr. Corp. of Am. , 403 F.3d 1134, 1138 (10th Cir. 20 05) (reviewing de novo a district court’s finding th at plaintiff failed to exhaust); Argo v. Blue Cross & Blue Shield of Kan., Inc. , 452 F.3d 1193, 1199 (10th Cir. 20 06) (“We review a district court’s decision granting summary judgment de novo , resolving all factual disputes and drawing all reasonable inferences in favor of the non-moving party.”).
B. Exhaustion of Administrative Remedies Pursuant to § 1997e(a) of the PLRA, “No action shall be brought with respect to prison conditions under . . . any . . . Federal la w . . . until such admini strative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); accord Porter v. Nussle , 534 U.S. 516, 524 (2002) (holding that under § 1997e(a), federal pr isoners suing under Bivens must first exhaust inmate grievance pro cedures). This provision requires “proper exhaustion,” that is, full compliance w ith the prison’s grievance procedure. See Woodford v. Ngo , 548 U.S. 81, 90, 93 (20 06). Accordingly, “[a]n inmate who begins the grievance process but does not complete it is barred fro m pursuing a . . . clai m under [the] PLRA for failure to exhaust his administrative remedies.” Jernigan v. Stuchell , 304 F.3d 1030,-7- 1032 (10th Cir. 2002). But altho ugh exhaustion is a prerequis ite to filing suit in federal court, inmates are only required to exhaust available administrative remedies. “Where prison officials prevent, thwart, or hinder a prisoner’s efforts to avail himself of an administrative remedy, they render that re medy ‘unavailable’ and a court will excuse the prisoner’s failure to exhaust.” Little v. Jones , 607 F.3d 1245, 1250 (10th Cir. 2010). On appeal, the government maintains the district court correctly dismissed Mr. Lee’s complaint because he failed to exhaust hi s administrative remedies. It argues that at the time Mr. Lee filed suit in federal court, he had not refiled the Requests with FCI Florence as directed. Mr. Lee challenges the court’s decision, asserting he should be excused from the exhaustion requirement because prison officials rendered the administrative remedies unavailable to him by ignoring or interfering w ith his attempts to exhaust. He also claims the district court sh ould have held an evidentiary hearing before granting Defendants’ summary judgment motion. We agree with the government that M r. Lee did not exhaust his administrative remedies prior to filing suit b ecause it is undisputed that at the time he filed his complaint in federal court, he had not refiled his Requests with the in stitution as directed. We also reject Mr. Lee’s argument that prison offi cials rendered his administrative remedies unavailable. Mr. Lee has pointed to nothing in the record to support his claim that prison officials prevented, thwarted, or hindered his efforts to pursue his claims through the administrative process. To the contrary, rather than ignore or interfere with his attempts to exhaust, the record reveals prison officials at the Central Office were willing to excuse-8- the untimeliness of the initial Requests on th e basis of the memoranda in support of leniency provided by prison sta ff. The Central Office then cl early instructed Mr. Lee to refile his Requests at the institutional level. Mr. Lee does not assert he was prevented from resubmitting his Requests to FCI Florence or explain how this requirement impeded or obstructed his access to the administrative remedy process. 2 See BOP Program Statement 1330.13(11)(c) (givin g the Central Office the discretion to “direct that the submission be accepted at the lower level (either upon the inmate’s resubmission or direct return to the lower level).” (emphasis added)). In addition, Mr. Lee was not entitled to an evidentiary hearing before the district court ruled on Defendants’ summary judgmen t motion. Review of the order clearly reflects that the magistrate judge examined th e parties’ briefs and supporting materials to evaluate the merits of Defendants’ motion. No thing in the record suggests the judge could not adequately address the issues and evidence presented in this case by review of these written submissions. See Geear v. Boulder Cmty. Hosp. , 844 F.2d 764, 766 (10th Cir.

2 Mr. Lee has presented documentation on appe al indicating that after the district court dismissed his case without prejudice, he refiled his Request for claim number 729465 with FCI Florence as di rected by the Central Office. See Fitzgerald v. Corr. Corp. of Am. , 403 F.3d 1134, 1139 (10th Cir. 2005) (“[F]ailure to exhaust administrative remedies is often a temporary, curable, procedural flaw. If the time permitted for pursuing administrative remedies has not ex pired, a prisoner who brings suit without having exhausted these remedies can cure the defect simply by exhausting them and then reinstituting his suit (in the even t the administrative claim fail s to afford him the desired relief.”)). Before Mr. Lee can file suit in court, he must complete the administrative process with respect to that refiled Requ est. Only then will he know whether the administrative process has failed to afford him the relief he seeks.-9- 1988) (holding that any hearing requirement for summary judgment motions is satisfied by court’s review of docume nts submitted by parties). Ther efore, the district court properly dismissed Mr. Lee’s complaint without first conduc ting an evidentiary hearing because it is undisputed that at the time he filed suit, Mr. Lee had not exhausted his administrative remedies. C. Stay of Proceedings Pending Exhaustion Mr. Lee also asserts that rather than granting Defendants’ motion for summary judgment, the court should have stayed the proceeding for ninety days so he could properly exhaust his administrative remedies. Mr. Lee is correct that under the pre- PLRA version of § 1997e, courts were directed to stay actions not administratively exhausted “‘if the court believed that such a requirement would be appropriate a nd in the interests of justice.’” Garrett v. Hawk , 127 F.3d 1263, 1265 (10th Cir. 1997) (brackets omitted) (quo ting 42 U.S.C. § 1997e(a)(1) (1994)), abrogated on other grounds by Booth v. Churner , 532 U.S. 731 (2001). However, under the current version of the stat ute, which we are bound to apply, “[n]o action shall be brought . . . until such admi nistrative remedies as are available are exhausted.” Id. (quoting 42 U.S.C. § 1997e(a) (1997)); accord Porter v. Nussle , 534 U.S. 516, 524 (2002) (noting “[t]he current e xhaustion provision differs markedly from its predecessor. Once within the discretion of the di strict court, exhaus tion in cases covered by § 1997e(a) is now mandatory.”); Fitzgerald v. Corr. Corp. of Am. , 403 F.3d 1134, 1140–41 (10th Cir. 2005) (“42 U.S.C. § 1997e(a) requires exhaustion of administrative-10- remedies as a precondition to bringing litigation, and requires dismissal where a litigant has failed to complete such exhaustion.”). Thus, Mr. Lee was not entitled to a stay of proceedings pending proper ex haustion of his admi nistrative remedies and the district court correctly dismissed the complaint. CONCLUSION III. For the foregoing reasons, we AFFIRM the decision of the district court granting Defendants summary judgment and dismissi ng Mr. Lee’s complaint without prejudice. We GRANT Mr. Lee’s motion to proceed in forma pauperis , but remind him of his obligation to make partial payments until the district court and appellate filing fees are paid in full. See 28 U.S.C. § 1915(b)(1).
ENTERED FOR THE COURT
Carolyn B. McHugh Circuit Judge