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 Schreck, LLP, Denver, Colorado, for PlaintiffAppellant. 

Jennifer Susan Huss, (John W. Suthers, Attorney General, with her on the brief) Office of 

the Attorney General for the State of Colorado, Denver, Colorado, for DefendantsAppellees. 

 

Before LUCERO, MATHESON, Circuit Judges, and FREUDENTHAL, District 

Judge.*

 *

 The Honorable Nancy D. Freudenthal, District Judge of the United States District 

Court for the District of Wyoming, sitting by designation. 

FILED 

United States Court of Appeals 

Tenth Circuit 

November 8, 2011

Elisabeth A. Shumaker 

Clerk of Court
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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 through the prison grievance system. The 

district court granted summary judgment in favor of the defendants, finding that Tuckel 

had failed to exhaust administrative remedies under the Prison Litigation Reform Act 

(“PLRA”), 42 U.S.C. § 1997e(a). We hold that a plaintiff with an objectively reasonable 

fear of retaliation from prison officials may show that administrative remedies were 

unavailable to him and thereby be excused from exhausting such remedies. Because 

there are disputed issues of fact about the availability of administrative 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”). Unsatisfied with his position, Tuckel allegedly 

struck a deal with Scott 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, however, Grover denied the existence 

of the agreement. Tuckel subsequently filed a complaint through the prison grievance 

system. 
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After filing his grievance, Tuckel was approached by several inmates and 

informed that Scott Keys, who managed a program at the prison, told them that his 

grievance had resulted in their loss of incentive pay. At the apparent recommendation of 

Grover and other officials, the inmates proceeded to assault Tuckel, causing severe 

damage to his eye. Rather than bringing another grievance, Tuckel filed a § 1983 claim 

in district court, alleging 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 remedies. 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 analysis, we must view evidence in the light most favorable 

to the non-moving party. McCarty v. Gilchrist, 646 F.3d 1281, 1284 (10th Cir. 2011). 

“Summary judgment is appropriate when there 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 judgment against Tuckel based solely on its 

 1

 Although Tuckel specifically alleged only 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. 
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determination that the PLRA requires exhaustion 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 Corrections (“CDOC”) regulations; he concedes 

that he did not. We are thus faced squarely with the task of interpreting 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, 1307 (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” exhaustion provision, which provides:

No action shall be brought with respect to prison conditions under section 

1983 of this title, or any other Federal 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 that the PLRA’s exhaustion requirement is 

mandatory. Woodford, 548 U.S. at 84. But we need not determine whether an exception 

to this requirement is appropriate here. Instead, we must decide if the exhaustion 

requirement, by its own terms, supports the district 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 officials can render an administrative remedy 
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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 are exhausted.” (emphasis added)). It follows 

that if an administrative remedy is not available, then an inmate cannot be required to 

exhaust it. Because the statute 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 “capable of use for the accomplishment of a 

purpose.” See Booth v. Churner, 532 U.S. 731, 737 (2001) (citing Webster’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 officials prevent, thwart, or hinder a prisoner’s 

efforts to avail himself of [the] administrative remedy.” Little v. Jones, 607 F.3d 1245, 

1250 (10th Cir. 2010); see also Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 

2002) (holding that a prison official’s failure to respond to a grievance within prescribed 

time limit renders an administrative remedy unavailable). Based on this principle, we 

have obligated district courts “to ensure that any defects in exhaustion [are] not procured 

from the action or inaction of prison officials.” Aquilar-Avellaveda v. Terrell, 478 F.3d 

1223, 1225 (10th Cir. 2007). 

In light of our precedent, we find it difficult to accept the proposition that an 
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administrative remedy is available in any meaningful 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 process through threats or intimidation, that 

process can no longer be said to be “available.” 

 In so holding, we join the Second, Seventh, and Eleventh 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 York, 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 uniformly held that “some threats disrupt the 

operation and frustrate the purposes of the administrative remedies process enough that 

the PLRA’s exhaustion requirement does not allow them.” Turner, 541 F.3d at 1085; see 

also, Kaba, 458 F.3d at 686 (“The attack itself 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, unavailable.”). 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 the 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 pursue them, the inmate loses a benefit that 
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Congress intended to bestow on him.”2 541 F.3d at 1077. Without venturing into the 

realm of guesswork, we are confident that Congress did not intend the exhaustion 

requirement to summarily prevent 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 remedy for violations of their constitutional 

rights.”). 

C 

Having established that threats or intimidation by prison officials can render an 

administrative remedy unavailable, we must consider 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 must make to establish that 

remedies are unavailable. The Second Circuit was the first to address this issue, and 

determined that the test “must be an objective one.” Hemphill, 380 F.3d at 688. 

Specifically, the court considered whether a “similarly situated individual of ordinary 

firmness” would consider administrative 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 promote accountability among prison officials and deter abusive 

behavior. See 541 F.3d at 1085. We agree that accountability and deterrence may be 

positive side effects of our decision, but absent 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 estoppel to prevent abusive 

prison officials from asserting exhaustion as an affirmative defense and a catch-all 

Continued . . . 
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seems to have been adopted by the Seventh Circuit, 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 Circuit has opted for an objective test . . . .”). 

Finally, the Eleventh Circuit settled on a clear two-prong analysis in Turner. 541 F.3d at 

1085. Under this analysis, a court must determine if the plaintiff was subjectively 

deterred in addition to the objective 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, 541 F.3d at 1085. Accordingly, 

we hold that an inmate must make two showings: (1) that the threat or intimidation 

actually did deter the plaintiff inmate from lodging a grievance or pursuing a particular 

part of the prison administrative process; and (2) that the threat or intimidation would 

deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance or 

pursuing the part of the prison administrative process that the inmate failed to exhaust. 

The first showing is subjective; the inmate must show that he was actually 

deterred. The second is an objective one, requiring the district court to consider the 

context of the alleged threat or intimidation. For example, a threat that was allegedly 

 

“special circumstances” exception to the PLRA exhaustion requirement. See Hemphill, 

380 F.3d at 686. We have previously considered 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 once 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 from setting up an exhaustion 

defense. Similarly, we need not address the existence of a “special circumstances” 

exception in this case. 
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made years prior to the inmate’s suit may fail to render administrative remedies 

unavailable. The same is true if an inmate is no longer held in the prison in which he 

experienced retaliatory violence. This objective element ensures that inmates cannot 

easily circumvent the exhaustion requirement, and provides district courts with a means 

of quickly filtering out frivolous claims. Only threats that are sufficiently serious and 

retaliatory acts that are severe enough to deter a reasonable inmate will result in an 

administrative remedy becoming unavailable for PLRA purposes. 

As a result, not all—or even most—First Amendment retaliation claims involving 

the grievance process will be exempt from exhaustion. Such claims do, however, add an 

additional layer of complexity. The merits of a First Amendment retaliation claim, such 

as the one brought by Tuckel, may overlap with the objective prong of our test. See 

Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007) (requiring a plaintiff 

asserting a First Amendment retaliation claim to show, inter alia, “that the defendant’s 

actions caused the plaintiff to suffer an injury that would chill a person of ordinary 

firmness from continuing to engage in that activity”). Nevertheless, demonstrating that 

an official objectively chilled an inmate from relying on administrative remedies presents 

a significant challenge in any context. As such, there is little incentive 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 the burden of asserting and proving that the 

plaintiff did not utilize administrative remedies. Id. Once a defendant proves that a 
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plaintiff failed to exhaust, however, the onus falls on the plaintiff to show that remedies 

were unavailable to him as a result of intimidation by prison officials. Plaintiffs should 

be afforded an opportunity to counter the exhaustion 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. Woodford, 548 U.S. at 102-03. Defendants point 

to language in Woodford indicating that exhaustion under the PLRA “is no longer left to 

the discretion of the district court.” 548 U.S. at 85. But this language does not support 

the defendants’ position. Throughout 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 remedies are available; it does not give discretion to fabricate 

exceptions to the requirement that inmates exhaust available remedies. The Seventh and 

Eleventh Circuits apparently reached similar 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 regulations, an inmate may file an 

emergency grievance when irreparable harm is imminent. Colo. Dept. Corrections 
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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 retaliation inmates might have about using the 

regular grievance procedures. We disagree. 

An inmate who has been threatened or beaten for using administrative procedures 

has no reason to expect that an emergency grievance procedure, by virtue of being 

expedited, is somehow different and will not 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 grievance will be forwarded to the 

warden necessarily ensure that an inmate will not be harmed. In some instances,4

 a 

warden may refuse or be unable to protect 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 the warden or other ranking prison official can turn for 

redress. 

We are thus not persuaded that the CDOC 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 attacked in his cell after he specifically informed his 

prison’s warden of the threats made against him. 458 F.3d at 682-83. 
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(rejecting the argument that the plaintiff “should have filed an emergency grievance”); 

see also Kaba, 458 F.3d at 681-82 (acknowledging that there was a special grievance 

procedure in place, but according it no consideration in the analysis). 

III 

The district court granted the defendants’ motion for summary judgment on the 

basis of exhaustion before Tuckel had a meaningful opportunity to gather evidence 

concerning his alleged fear of retaliation. As a result, the record on appeal does not 

reveal whether Tuckel can make an adequate showing that the alleged intimidation by 

defendants rendered administrative remedies unavailable to him. 

Given the sparse record and the disputed factual issues concerning the objective 

reasonableness of Tuckel’s fear of retaliation, the judgment of the district court is 

VACATED and the case is REMANDED for further proceedings consistent with this 

opinion.