FILED

United States Court of Appeals

Tenth Circuit

December 29, 2015

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RANDY JAY JOLLIFF,

Plaintiff-Appellant,

v.

CORRECTIONS CORPORATION OF

AMERICA; CIMARRON

CORRECTIONAL FACILITY,

Defendants-Appellees.

No. 15-6090

(D.C. No. 5:14-CV-00841-R)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.

Pro se1

 prisoner Randy Jolliff filed a civil-rights action against Corrections

Corporation of America and Cimarron Correctional Facility (“Cimarron”)

(collectively, “the Prison”) under 42 U.S.C. § 1983. The district court found that

Mr. Jolliff failed to exhaust his administrative remedies and granted summary

* This order and judgment is not binding precedent except under the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 Federal Rule of Appellate

Procedure 32.1 and Tenth Circuit Rule 32.1.

1 Because Mr. Jolliff appears pro se, we afford his filings a liberal

construction, see Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010), but

we do not craft arguments or otherwise advocate for him, see Yang v. Archuleta,

525 F.3d 925, 927 n.1 (10th Cir. 2008).
judgment in favor of the Prison. Mr. Jolliff now appeals and moves for leave to

proceed in forma pauperis (“IFP”). Exercising jurisdiction pursuant to 28 U.S.C.

§ 1291, we affirm and grant Mr. Jolliff leave to proceed IFP on appeal.

I

The sole question before us is whether Mr. Jolliff exhausted his

administrative remedies prior to initiating his § 1983 action against the Prison. 

“We review de novo the district court’s finding of failure to exhaust

administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.

2002). 

The Prison Litigation Reform Act (“PLRA”) requires that “a prisoner . . .

exhaust his administrative remedies prior to filing a lawsuit regarding prison

conditions in federal court.” Little v. Jones, 607 F.3d 1245, 1249 (10th Cir. 2010)

(citing 42 U.S.C. § 1997e(a)). A prisoner exhausts administrative remedies “by

properly following all of the steps laid out in the prison system’s grievance

procedure.” Id. However, the PLRA only requires the exhaustion of

administrative remedies “as are available.” 42 U.S.C. § 1997e(a). “Where prison

officials prevent, thwart, or hinder a prisoner’s efforts to avail himself of an

administrative remedy, they render that remedy ‘unavailable’ and a court will

excuse the prisoner’s failure to exhaust.” Little, 607 F.3d at 1250. 

As an inmate in Cimarron, Mr. Jolliff was required to complete the fourstep grievance policy promulgated by the Oklahoma Department of Corrections

2
(“ODOC”). See id. Mr. Jolliff concedes that he failed to comply with the

ODOC’s grievance procedures but argues that his failure to exhaust should be

excused because Prison officials thwarted his efforts to file a formal grievance,

the third step in the ODOC grievance process. See ODOC Inmate/Offender

Grievance Process, § V.A. Specifically, he alleges that he submitted formal

grievances to numerous Prison officials, including the warden, but received no

response. 

Such non-responsiveness, however, does not excuse a prisoner’s failure to

exhaust administrative remedies under the ODOC’s grievance policy. When a

prisoner receives no response to a formal grievance, the ODOC’s grievance policy

instructs the prisoner to send a separate grievance asserting the failure to respond

to the Administrative Review Authority. See id. § V.C.4. Mr. Jolliff has not

alleged or submitted any evidence that he attempted to comply with this

procedure. Consequently, we must conclude that Mr. Jolliff failed to exhaust his

administrative remedies and is not excused from his failure to do so. 

Accordingly, the district court correctly granted summary judgment in the

Prison’s favor.

Although he did not prevail, Mr. Jolliff “has demonstrated ‘a financial

inability to pay the required fees and the existence of a reasoned, nonfrivolous

argument on the law and facts in support of the issues raised on appeal.’” 

McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (quoting

3
DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991)). Thus, we allow

him to proceed on appeal IFP. However, we remind Mr. Joliff that he is obliged

to continue making partial payments until he has completely paid the appellate

filing fee.

II

For the foregoing reasons, we AFFIRM the district court’s grant of

summary judgment for the Prison and GRANT Mr. Jolliff leave to proceed IFP. 

Entered for the Court

JEROME A. HOLMES

Circuit Judge

4