PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

MARK TUCKEL, Plaintiff–Appellant,

v. MAJOR GROVER; STEVE KEYS, Defendants–Appellees. No. 10-1353

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:10-CV-00215-KLM-MEH)

Bill C. Berger, Brownstein Hyatt Farber Sc hreck, LLP, Denver, Co lorado, for PlaintiffAppellant. Jennifer Susan Huss, (John W. Suthers, Attorney General, with her on the brief) Office of the Attorney General for the State of Co lorado, Denver, Colora do, for DefendantsAppellees.

Before LUCERO , MATHESON , Circuit Judges, and FREUDENTHAL , District Judge. *

* The Honorable Nancy D. Freudenthal, Dist rict Judge of the United States District Court for the District of Wy oming, sitting by designation. FILED United States Court of Appeals Tenth Circuit 

### November 8, 2011
Elisabeth A. Shumaker Clerk of Court-2- LUCERO , Circuit Judge.

Mark Tuckel, an inmate in state prison in Crowley, Colorado, filed a 42 U.S.C. § 1983 lawsuit against two prison officials. In his suit, Tuckel averred that he was beaten in retaliation for submitting a complaint thr ough the prison grievance system. The district court granted summary judgment in fa vor of the defendants, finding that Tuckel had failed to exhaust administrative remedi es under the Prison L itigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). We hold that a plaintiff w ith an objectively reasonable fear of retaliation from prison officials ma y show that administrative remedies were unavailable to him and thereby be excused from exhausting such remedies. Because there are disputed issues of fact about th e availability of admini strative remedies to Tuckel, we reverse and remand.
I Tuckel held a job in vehicle maintenance while serving a sentence at the Arkansas Valley Correction Facility (“AVCF”). Unsatisfi ed with his position, Tuckel allegedly struck a deal with Sco tt Grover, a prison official. Under the claimed agreement, Grover would see that Tuckel was transferred to a vocational program if Tuckel completed a welding project. Upon completion of the project, ho wever, Grover denied the existence of the agreement. Tuckel subsequently filed a complain t through the prison grievance system.-3- After filing his grievance, Tuckel wa s approached by several inmates and informed that Scott Keys, who managed a pr ogram at the prison, told them that his grievance had resulted in their loss of incentive pay. At th e apparent recommendation of Grover and other officials, the inmates pr oceeded to assault Tuckel, causing severe damage to his eye. Rather than bringing another grieva nce, Tuckel filed a § 1983 claim in district court, allegi ng violations of his First and Eighth Amendment rights. 1 Invoking the PLRA, defendants moved for summary judgment on the ground that Tuckel failed to exhaust his administrative reme dies. Despite Tuckel’s protests that he did not exhaust because he feared further retaliation, the district court granted the defendants’ motion. Tuckel now appeals.
II “We review summary judgment decisions de novo, applying the same legal standard as the district court.” Willis v. Bender, 596 F.3d 1244, 1253 (10th Cir. 2010) (quotation omitted). In our anal ysis, we must view evidence in the light most favorable to the non-moving party. McCarty v. Gilc hrist, 646 F.3d 1281, 12 84 (10th Cir. 2011). “Summary judgment is appropriate when ther e is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” Id. at 1285 (quotation omitted). The district court granted summary judgm ent against Tuckel ba sed solely on its

1 Although Tuckel specifically alleged onl y an Eighth Amendment violation in his complaint, the magistrate judge, in recognition of Tuckel's pro se status, determined that his allegations also implicated a First Amendment retaliation claim.-4- determination that the PLRA requires exha ustion regardless of a prisoner’s legitimate fear of retaliation. There is no dispute as to whether Tuckel exhausted the remedies provided in the Colorado Department of Corr ections (“CDOC”) regulations; he concedes that he did not. We are thus faced squarely with the task of in terpreting the PLRA, and specifically, the scope of its exhaustion provision. A Any exercise in statutory interpretation must begin with an examination of the plain language at issue. United States v. Sprenger, 625 F.3d 1305, 13 07 (10th Cir. 2010). Congress enacted the PLRA to reduce the “disruptive tide of frivolous prisoner litigation.” Woodford v. Ngo, 548 U.S. 81, 97 (2006). To achieve this end, the statute includes an “invigorated” exhaus tion provision, which provides: No action shall be brought with resp ect to prison conditions under section 1983 of this title, or any other Federa l law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). The Supreme Court recently reaffirmed th at the PLRA’s exhaustion requirement is mandatory. Woodford, 548 U.S. at 84. But we need not determin e whether an exception to this requirement is appropriate here. Instead, we must decide if the exhaustion requirement, by its own terms, supports the di strict court’s grant of summary judgment. We hold that it does not, and join three of our sibling circuits in concluding that intimidation or threats by prison official s can render an administrative remedy-5- unavailable under the PLRA’s exhaustion provision.
B The plain language of the PLRA requires that prisoners exhaust only available remedies. 42 U.S.C. § 1997e(a) (“No action shall be brought . . . until such administrative remedies as are available ar e exhausted.” (emphasis added)). It follows that if an administrative remedy is not availa ble, then an inmate cannot be required to exhaust it. Because the statut e does not explicitly define the term “available,” we must adopt its ordinary meaning. Gross v. FBL Fin. Servs., Inc., 129 S. Ct . 2343, 2350 (2009). To be “available,” a remedy must be “capab le of use for the accomplishment of a purpose.” See Booth v. Chur ner, 532 U.S. 731, 737 (2001) (citing We bster’s Third New Int’l Dictionary 150 (1993)). Our circuit has previously recognized that an administrative remedy is not “available” under the PLRA if “prison official s prevent, thwart, or hinder a prisoner’s efforts to avail himself of [the] administrati ve remedy.” Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010); see al so Jernigan v. Stuchell, 3 04 F.3d 1030, 1032 (10th Cir. 2002) (holding that a prison official’s failure to respond to a grieva nce within prescribed time limit renders an administrative remedy unavailable). Based on this principle, we have obligated district courts “to ensure that any defects in exhaus tion [are] not procured from the action or inaction of prison officials.” Aquilar-Ave llaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007). In light of our precedent, we find it di fficult to accept the proposition that an-6- administrative remedy is available in any mean ingful sense if its use will result in serious retaliation and bodily harm. We therefore conclude that when a prison official inhibits an inmate from utilizing an administrative proce ss through threats or intimidation, that process can no longer be said to be “available.” In so holding, we join the Second, Seventh, and Elev enth Circuits. See Turner v. Burnside, 541 F.3d 1077, 1085 (11th Cir. 2008); Kaba v. Step , 458 F.3d 678, 683-86 (7th Cir. 2006); Hemphill v. New Yo rk, 380 F.3d 680, 686 (2d Cir. 2004); see also Verbanik v. Harlow, No. 10-2522, 2011 WL 3488979, at *2 (3d Cir. Aug. 11, 2011) (per curiam) (unpublished) (holding the same in a non- precedential opinion). Faced with claims similar to Tuckel’s, these courts have unif ormly held that “some threats disrupt the operation and frustrate the purposes of the ad ministrative remedies process enough that the PLRA’s exhaustion requirement does not a llow them.” Turner, 541 F.3d at 1085; see also, Kaba, 458 F.3d at 686 (“The attack its elf may have transformed the remedies from available to unavailable.”); Hemphill, 380 F.3d at 688 (“[S]ome circumstances may render seemingly accessible remedies, in fact, una vailable.”). We agree that this is the most logical reading of the statute. Although we need not reach beyond the statute’s text, we note that our interpretation is faithful to th e underlying purposes of the PLRA . As the Eleventh Circuit explained in Turner, when “an inmate forgoes administrative remedies because prison officials have made it irrational for him to pu rsue them, the inmate loses a benefit that-7- Congress intended to bestow on him.” 2 541 F.3d at 1077. Without venturing into the realm of guesswork, we are confident th at Congress did not intend the exhaustion requirement to summarily prev ent inmates from vindicating their constitutional rights. See Brown v. Plata, 131 S.Ct. 1910, 1937 ( 2011) (“Courts should presume that . . . Congress did not leave prisoners without a re medy for violations of their constitutional rights.”). C Having established that threats or intimid ation by prison officials can render an administrative remedy unavailable, we must c onsider the showing necessary to defeat a failure-to-exhaust defense. Our out of circuit colleagues have adopted somewhat differing standards with respect to the showing a plaintiff mu st make to establish that remedies are unavailable. The Second Circu it was the first to address this issue, and determined that the test “mus t be an objective one.” He mphill, 380 F.3d at 688. Specifically, the court considered whether a “s imilarly situated individual of ordinary firmness” would consider administ rative remedies to be available. 3 Id. A similar test

2 The Turner court further reasoned that allowing inmates faced with threats to bring suit in court would prom ote accountability among prison officials and deter abusive behavior. See 541 F.3d at 10 85. We agree that accounta bility and deterrence may be positive side effects of our decision, but ab sent evidence that such effects were contemplated by Congress in passing the PLRA , we base our interpretation solely on the statute’s plain text.

3 The Second Circuit also announced a theory of esto ppel to prevent abusive prison officials from asserting exhaustion as an affirmative defense and a catch-all Continued . . .-8- seems to have been adopted by the Seventh Ci rcuit, albeit implicitly. Kaba, 458 F.3d at 684 (“While we have not laid out a particular test for deciding when administrative remedies become unavailable, the Second Circu it has opted for an objective test . . . .”). Finally, the Eleventh Circuit se ttled on a clear two-prong anal ysis in Turner. 541 F.3d at 1085. Under this analysis, a court must determine if the plaintiff was subjectively deterred in addition to the obj ective inquiry utilized by the other circuits. Id. After considering these various tests, we conclude that the Eleventh Circuit’s analysis in Turner serves as the best model. See Turner, 54 1 F.3d at 1085. Accordingly, we hold that an inma te must make two showings: (1) that the threat or intimidation actually did deter the plaintiff inmate from lo dging a grievance or pu rsuing a particular part of the prison administrative process; a nd (2) that the threat or intimidation would deter a reasonable inmate of ordinary firmne ss and fortitude from lodging a grievance or pursuing the part of the prison administrative pr ocess that the inmate failed to exhaust. The first showing is subjective; the inma te must show that he was actually deterred. The second is an objective one, re quiring the district court to consider the context of the alleged threat or intimidation. For example, a thre at that was allegedly “special circumstances” excep tion to the PLRA exhaustion requirement. See Hemphill, 380 F.3d at 686. We have previously c onsidered the applicability of estoppel in the PLRA framework, and reserved the issue for another day. See Jernigan, 304 F.3d at 1033. Confronted with it onc e more, we again conclude it is unnecessary to decide the issue. Our determination that the district court erred in granting summary judgment is unaffected by Tuckel’s ability to estop the defendants fr om setting up an exhaustion defense. Similarly, we need not address the existence of a “special circumstances” exception in this case.-9- made years prior to the inma te’s suit may fail to render administrative remedies unavailable. The same is true if an inmate is no longer he ld in the prison in which he experienced retaliatory violence. This obje ctive element ensures that inmates cannot easily circumvent the exhaustion requirement, a nd provides district courts with a means of quickly filtering out frivolou s claims. Only threats that are sufficiently serious and retaliatory acts that are severe enough to deter a reasonab le inmate will result in an administrative remedy becoming un available for PLRA purposes. As a result, not all—or even most—Fir st Amendment retaliation claims involving the grievance process will be exempt from exha ustion. Such claims do, however, add an additional layer of complexity. The merits of a First Amendment re taliation claim, such as the one brought by Tuckel, may overlap with the objectiv e prong of our test. See Shero v. City of Grove, 510 F.3d 1196, 12 03 (10th Cir. 2007) (requiring a plaintiff asserting a First Amendment re taliation claim to show, inte r alia, “that the defendant’s actions caused the plaintiff to suffer an in jury that would chill a person of ordinary firmness from continuing to engage in that ac tivity”). Nevertheless, demonstrating that an official objectively chilled an inmate from relying on admini strative remedies presents a significant challenge in any context. As such , there is little incen tive for an inmate to assert baseless retaliation claims rather than simply utilizing a grievance procedure. Failure to exhaust under the PLRA is an affirmative defense. Jones v. Bock, 549 U.S. 199, 212 (2007). Defendants thus bear th e burden of asserting and proving that the plaintiff did not utilize administrative remedi es. Id. Once a defendant proves that a-10- plaintiff failed to exhaust, however, the onus falls on the plaintiff to show that remedies were unavailable to him as a result of intimida tion by prison officials. Plaintiffs should be afforded an opport unity to counter the ex haustion defense in this manner regardless of whether the issue is asserted by defendants or raised by the court sua sponte. See Aquilar-Avellaveda, 478 F.3d at 1225.
D In reaching our conclusion, we necessarily reject the defendants’ arguments that our holding conflicts with the Supreme Court’s decision in Woodford. In that case, the Supreme Court confirmed that an inmate must comply with the procedural rules dictated by an administrative grievance system. Woodfo rd, 548 U.S. at 102-03. Defendants point to language in Woodford indicating that ex haustion under the PLRA “is no longer left to the discretion of the district c ourt.” 548 U.S. at 85. But this language does not support the defendants’ position. Throu ghout Woodford, the Court is careful to acknowledge that the PLRA’s exhaustion requirement applies only to “available” remedies. Id. at 84. Our holding concerns when remedi es are available; it does not give discretion to fabricate exceptions to the requirement that inmates exhaust availabl e remedies. The Seventh and Eleventh Circuits apparently reached simila r conclusions in Turner and Kaba, both of which were decided after Woodford. Defendants’ argument that Tuckel should have filed an emergency grievance prior to bringing suit also lacks merit. Under CDOC regulatio ns, an inmate may file an emergency grievance when irreparable harm is imminent. Colo. Dept. Corrections-11- Admin. Reg. 850-04(IV)(I)(1). Once filed, an emergency grievance bypasses the normal channels of review and may immediately be forwarded to the warden or other head administrative official within the prison. Id. Defendants contend that the existence of this procedure should allay any fear of re taliation inmates might have about using the regular grievance procedures. We disagree. An inmate who has been threatened or be aten for using administrative procedures has no reason to expect that an emergency grievance procedure, by virtue of being expedited, is somehow different and will no t result in retaliation. If anything, an expedited procedure could be construed as hastening the retaliation an inmate might suffer. Nor does the potential that an emergency grievanc e will be forwarded to the warden necessarily ensure th at an inmate will not be harmed. In some instances, 4 a warden may refuse or be unable to prot ect a prisoner from retaliation by lower prison officials. Further, even with an emergency procedure in place, it is unclear where an inmate faced with threats by th e warden or other ranking pr ison official can turn for redress. We are thus not persuaded that the CD OC emergency procedure eliminates an inmate’s fear of retaliation. In reaching this determination, we once more align ourselves with the other circuits that have contemplated this issue. See Turner, 541 F.3d at 1083-84

4 The plaintiff in Kaba was a ttacked in his cell after he specifically informed his prison’s warden of the threats made against him. 458 F.3d at 682-83.-12- (rejecting the argument that the plaintiff “s hould have filed an em ergency grievance”); see also Kaba, 458 F.3d at 681-82 (acknowledging that th ere was a special grievance procedure in place, but according it no consideration in the analysis).
III The district court granted the defendant s’ motion for summary judgment on the basis of exhaustion before Tuckel had a me aningful opportunity to gather evidence concerning his alleged fear of retaliation. As a result, the record on appeal does not reveal whether Tuckel can ma ke an adequate showing that the alleged intimidation by defendants rendered administrative remedies unavailable to him. Given the sparse record and the disputed factual issues concer ning the objective reasonableness of Tuckel’s fear of retaliati on, the judgment of the district court is VACATED and the case is REMANDED for further proceedings consistent with this opinion.