* After examining Appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted w ithout oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### July 20, 2005 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KAMAL K. PATEL, Plaintiff - Appellant, v. L.E. FLEMING, Warden; DR. MALCHER, FNU; JOHN DOE, Health Service Administrator; JOHN DOE, Health Service Personnel; JOHN DOE, Associate Warden; FNU MORRIS; FNU ROBERTS; TOM F. GOFORTH, Defendants - Appellees. No. 04-6266

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 02-CV-1735-T) *

Kamal K. Patel, pro se

. Robert G. McCampbell, K. Lynn Anderson, Office of the United States Attorney for the Western District of Oklahoma, Oklahoma City , Oklahoma, for DefendantsAppellees.- 2 -

Before EBEL , McKAY and HENRY , Circuit Judges.

EBEL , Circuit Judge.

Plaintiff Kamal K. Patel (“Plaintiff”), a prisoner appearing pro se , brings suit pursuant to 42 U.S.C. § 1983 challenging the c onditions of his incarceration at two federal correctional facilities in Oklahoma. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM the judgment of the district court dismissing Plaintiff’s suit based on his failure to exhaust his administrative remedies. We DENY Plaintiff’s motion to reconsider our order strikin g an issue related to a separate case that he raised in his op ening brief. We also DENY as moot Plaintiff’s motion to supplement the record onappeal. Finally, we decline to revisit our order disposing of Plaintiff’s motio n requesting that we force Defendants to provide Plaintiff with copies of cert ain filings, based on a response that Defendants filed to that motion after we had a lready ruled on it. I. Background Plaintiff was incarcerated at the Federal Correctio nal Institute (“FCI”) in El Reno, Oklahoma, from January 2000 until December 6, 2000. Plaintiff was then transferred to the Federal Transfer Center (“FTC”) in Oklahoma City, Oklahoma, where he was incarcerated until July 9, 2001. Plai ntiff’s claims in this lawsuit center on the alleged conditions of his incarcerati on at these two facilities. On1 Plaintiff alleged below that “the disparate treatme nt between himself and

the other inmates [at FCI El Reno] who were permitt ed to live in the non-smoking unit, despite being similarly situated, violated th e Fifth Amendment’s Equal Protection Clause.” Plaintiff does not appear to a ssert this claim on appeal. Because we affirm the district court’s dismissal of Plaintiff’s suit based on his failure to exhaust his administrative remedies, we need not and do not evaluate whether Plaintiff waived his equal protection argum ent on appeal.

2 Plaintiff amended his complaint in February 2003. - 3 - July 9, 2001, Plaintiff was transferred to a federa l correctional facility in Texas. This lawsuit does not involve the alleged condition s of his incarceration in that Texas facility, or any other facility to which Plai ntiff was subsequently transferred. In this suit, Plaintiff claims that “his Eighth Ame ndment rights to medical care were violated by the deliberate indifference o f prison officials at FCI El Reno and FTC Oklahoma City in failing to treat a pi nched nerve in his neck.” Plaintiff also claims that “his Eighth Amendment ri ghts to be free from unreasonable exposure to secondhand smoke were viol ated by the actions of prison officials at FCI El Reno in requiring him to be housed in a smoking unit and in a cell with a chain-smoker despite [Plaintif f]’s requests for non-smoking housing.” 1 Plaintiff initiated this suit in December 2002 by f iling a pro se complaint in the United States District Court for the Western Di strict of Oklahoma. 2 On December 16, 2002, the district court referred this case to a magistrate judge for3 Although Plaintiff filed his notice of appeal prematurely, the appeal is

nonetheless timely. The district court’s order dis missing Plaintiff’s claims was entered onto the docket on March 31, 2004. Because the district court did not set forth its judgment in a separate document, judgmententered for purposes of the Rules of Civil Procedure on August 30, 2004. See Fed. R. Civ. P. 58(b)(2)(B); Fed. R. App. P. 4(a)(7). Plaintiff was therefore r equired to file a notice of appeal prior to October 29, 2004. Fed. R. App. P. 4(a)(1) (B). Plaintiff’s notice of appeal was filed in the distr ict court on August 9, 2004. However, because we may treat Plaintiff’s notice of appeal as having been filed on August 30, after the entry of judgment in this c ase for purposes of the Rules of Civil Procedure, see Fed. R. App. P. 4(a)(2); FirsTier Mortgage Co. v. Investors Mortgage Ins. Co. , 498 U.S. 269, 274-76 (1991), Plaintiff’s appeal i s timely. In this case, we need not address whether the “pris oner mailbox rule,” Fed. R. App. P. 4(c)(1), applies. We note, however, that an inmate filing a notice of appeal may obtain the benefit of the rule only if h e or she submits a declaration or notarized statement in accordance with Rule 4(c)(1) . See United States v. (continued...) - 4 - initial proceedings. On September 2, 2003, Defendants moved to dismiss the suit. On February 2, 2004, the magistrate judge recommend ed that the case be dismissed without prejudice based on Plaintiff’s fa ilure to exhaust his administrative remedies. On March 30, 2004, the di strict court adopted the magistrate judge’s report and recommendation over P laintiff’s objections and dismissed the case. On August 9, 2004, Plaintiff f iled a notice of appeal. II. Analysis A. Plaintiff’s Failure to Exhaust Administrative Rem edies We review de novo a district court’s dismissal of an inmate’s suit f or failure to exhaust his or her administrative remedi es. Jernigan v. Stuchell , 304 F.3d 1030, 1032 (10th Cir. 2002). 3 The Prison Litigation Reform Act (“PLRA”)3 (...continued)

Ceballos-Martinez , 371 F.3d 713, 717 (10th Cir.), cert denied , 125 S. Ct. 624 (2004). The certificate of service that Plaintiff includes at the end of his notice of appeal falls short of Rule 4(c)(1)’s requirements: It is not a notarized statement, and it is not in technical compliance with 28 U.S.C . § 1746 because it excludes the phrase “under penalty of perjury.” We do not a ddress whether this deficiency is fatal or excusable, cf. Denver & Rio Grande W.R.R. Co. v. Union Pac. R.R. Co. , 119 F.3d 847, 848-49 (10th Cir. 1997) (citing “po licy which favors deciding cases on the merits as opposed to dismissing them b ecause of minor technical defects” in considering non-jurisdictional aspect o f Fed. R. App. P. 3), but we caution litigants that following the language of th e statute is required to take advantage of the liberalized timing requirements of the prisoner mailbox rule. - 5 - states that “[n]o action shall be brought with resp ect 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); se e also Porter v. Nussle , 534 U.S. 516, 524-25 (2002). As we explained in Jernig an , “[e]ven where the ‘available’ remedies would appear to be futile at p roviding the kind of remedy sought, the prisoner must exhaust the administrativ e remedies available.” 304 F.3d at 1032 (citing Booth v. Churner , 532 U.S. 731, 740 (2001)). Moreover, we have held that “the PLRA contains a total exhaustio n requirement, and . . . the presence of unexhausted claims in [prisoner]’s comp laint require[s] [a] district court to dismiss his [or her] action in its entirety without prejudice.” Ross v. County of Bernalillo , 365 F.3d 1181, 1189 (10th Cir. 2004); see also Graves v. Norris , 218 F.3d 884, 885 (8th Cir. 2000) (per curiam) (“ When multiple prison- 6 -

condition claims have been joined . . . § 1997e(a) requires that all available prison grievance remedies must be exhausted as to all of t he claims.”). To exhaust his or her administrative remedies, an i nmate in a federal prison must complete a four-step process before filing sui t. This process is laid out in the Code of Federal Regulations, as well as a paral lel Bureau of Prisons (“BOP”) Program Statement. See generally28 C.F.R. § 542 (2004); BOP Program Statement 1330.13 (2002). First, an inmate usuallymust attempt to informally resolve his or her concerns with prison staff. 28 C.F.R. § 542.13. If this attempt fails, an inmate must submit a formal written Admin istrative Remedy Request within twenty days of the date on which the basis f or the Request occurred. Id. § 542.14(a). If the Request does not provide satisfa ctory relief, an inmate must appeal the resolution of his or her Request to the appropriate BOP Regional Director within twenty days. Id. § 542.15(a). Finally, if an inmate disagrees with the Regional Director’s decision, the inmate must appeal the decision to the BOP’s General Counsel within thirty days. Id. § 542.15(a). We have held that if an inmate does not comply with the time limits laid out in 28 C.F.R. § 542, he or she has not properly exhausted his or her administrative remedies. As we noted in Ross , the PLRA . . . contains a procedural default concep t within its exhaustion requirement. A prison procedure that is procedurally barred and thus is unavailable to a prisoner is notthereby considered exhausted. Regardless of whether a prisoner goes through the4 Because we have held that the PLRA contains a total exhaustion

requirement, see Ross , 365 F.3d at 1189, we need not address whether Pla intiff also exhausted his administrative remedies regardin g the denial of medical treatment for his neck. We note, however, that Pla intiff first filed a Request regarding the denial of medical treatment for his n eck on September 12, 2001. Plaintiff filed a second Request regarding this den ial of medical treatment on September 26, 2002. Both Requests were filed long after Plaintiff was transferred from FCI El Reno and FTC Oklahoma City.

5 Plaintiff acknowledges that his Request was filed o utside the twenty-day filing period, stating in his brief that “[i]n relation to the allegations against prison staff at FCI El Reno, the appellant first fi led his prison grievances well past the twenty day time period to file the initial formal grievance under Bureau of Prisons policy.” - 7 - formality of submitting a time-barred grievance, he may not successfully argue that he has exhausted his admini strative remedies by, in essence, failing to employ them. 365 F.3d at 1186 (citations, quotations omitted). In this case, Plaintiff failed to exhaust his admin istrative remedies regarding his alleged exposure to secondhand smoke because he did not submit a written Administrative Remedy Request within twentydays of the date on which the basis for the Request occurred, as required by 28 C.F.R. § 542.14(a). 4 Plaintiff first filed such a Request regarding his alleged exposure to cigarette smoke on September 4, 2001. This Request was neces sarily filed more than twenty days after the date on which the basis for t he Request arose because Plaintiff was not incarcerated at FCI El Reno afterDecember 6, 2000—approximately nine months before Plaintiff fil ed his Request. 56 BOP Program Statement 1330.13(11)(b)(3) provides:

When deciding whether to reject a submission, Coord inators, especially at the institution level, should be flex ible, keeping in mind that major purposes of this Program are to solve pr oblems and be responsive to issues inmates raise. Thus, for example, consideration should be given to accepting a Request or Appeal th at raises a sensitive or problematic issue, such as medical tre atment, sentence computation, staff misconduct, even though the subm ission may be somewhat untimely. - 8 - Plaintiff argues that his late filing of a Request should be excused because BOP policy establishes that the twenty-day filing d eadline is flexible. The BOP does encourage Remedy Coordinators to be flexible i n deciding whether to reject a Request that is filed late. See BOP Program Statement 1330.13(11)(b)(3). 6 However, while flexibility in accepting belated fil ings is encouraged, such flexibility is not required. See 28 C.F.R. § 542.17 (“The Coordinator at any level may reject and return to the inmate without respons e a Request . . . that . . . does not meet any other requirement of this part.”); see also BOP Program Statement 1330.13(11)(a) (same); Pozo v. McCaughtry , 286 F.3d 1022, 1025 (7th Cir. 2002) (“To exhaust administrative remedies, a person mustfollow the rules governing filing and prosecution of a claim . . . . [T]hese i nclude time limits.”). Thus Plaintiff’s belated filing must not be excused on t he grounds that the twenty-day filing deadline is flexible.- 9 -

Nor must Plaintiff’s belated filing be excused base d on the circumstances that he asserts necessitated the late filing. The period in which an inmate may file a Request may be extended [w]here the inmate demonstrates a valid reason for delay . . . . In general, valid reason for delay means a situation w hich prevented the inmate from submitting the request within the estab lished time frame. Valid reasons for delay include the following: an e xtended period in-transit during which the inmate was separated fr om documents needed to prepare the Request . . . ; an extended p eriod of time during which the inmate was physically incapable of preparing a Request . . . ; an unusually long period taken for informal resolution attempts; [or an] indication by an inmate, verified by staff, that a response to the inmate’s request for copies of disp ositions . . . was delayed. 28 C.F.R. § 542.14(b). In this case, Plaintiff explains that he did not fi le his Request earlier because he was “earnestly” attempting to resolve hi s concerns informally and did not want to “rock the boat.” However, 28 C.F.R. § 542.14(b) vests the discretion to grant an extension in filing time with officials within the Bureau of Prisons, not an individual inmate. An inmate cannot unilate rally extend the twenty-day time limit for making a formal filing based on a de sire to resolve his or her claims informally. In this case, no official within the B ureau of Prisons granted Plaintiff an extension. Plaintiff’s own decision to rely on informal methods to resolve his concerns is not sufficient to extend the deadline f or filing a formal Request. Moreover, we see no basis in the record that sugges ts that the Bureau of Prisons- 10 -

should have granted Plaintiff an extension. Plaint iff cannot explain how he was attempting to resolve his concerns informally with the staff at FCI El Reno—much less explain why those informal resolutio n attempts took “an unusually long period,” id. —when he had been transferred from FCI El Reno more than nine months previously and presumably hadhad no contact with the staff at FCI El Reno after his transfer. Thus, Pla intiff’s contention that his delay in filing a Request was justified is without merit. Finally, Plaintiff’s belated filing cannot be excus ed on the grounds that the filing was considered on the merits despite its lat eness. In Ross , we stated that “[i]f a prison accepts a belated filing, and consid ers it on the merits, that step makes the filing proper for purposes of state law and avoids exhaustion, default, and timeliness hurdles in federal court.” 365 F.3dat 1186. Plaintiff argues that his late filing of a Request regarding his alleged exposure to cigarette smoke should be excused under Ross because that filing was considered on the merits. Because the record reveals that the portion of Plai ntiff’s Request regarding his alleged exposure to cigarette smoke at FCI El Reno was never considered on the merits, Plaintiff’s argument is without merit. Plaintiff submitted his Request while incarcerated at FCI Bastrop in Texas. In the response to Plaintiff’s Request, the Warden at FCI Bastrop made no mention of FCI El Reno, only addressing Plaintiff’s Request as it related to FCI- 11 -

Bastrop. Likewise, the Regional Director did not m ention FCI El Reno in his response to Plaintiff’s appeal of the Warden’s dete rmination. Finally, the response to Plaintiff’s appeal to the Office of Gen eral Counsel states that “the Warden and the Regional Director adequately respond ed to the issues [Plaintiff] raised in [his] appeal.” The response does go on t o paraphrase the general policy of FCI El Reno regarding the incarceration of smoke rs and non-smokers, stating: At FCI El Reno, inmates are allowed to smoke inside their assigned cells only, with the cell door closed, on a designated smoking range. Staff at FCI El Reno . . . assign smokers and non-s mokers to cells accordingly upon arrival to the unit. The sharing of a cell or living area between a smoker and a non-smoker will be avoi ded except when institution needs require housing of a smoking and nonsmoking inmate in the same cell. . . . [I]nmates wh o are found to be in violation of smoking in non-smoking areas are su bject to disciplinary action. Institution staff are making a reasonable effort to enforce the non-smoking policy. However, this explication of FCI El Reno’s general policies does not amount to addressing the merits of Plaintiff’s claim regardin g FCI El Reno. For example, the response did not explore whether (1) Plaintiff was housed in a smoking unit at FCI El Reno; (2) Plaintiff was housed in a cell with a chain smoker; (3) institution needs required housing Plaintiff in a s moking unit and/or in a cell with a chain smoker; (4) Plaintiff was exposed to second hand smoke; or (5) Plaintiff suffered actual harms as a result of this exposure. Thus, it is clear that neither the Warden, nor the Regional Director, nor the Office o f General Counsel “accept[ed] a belated filing, and consider[ed] it on the merits ,” thereby “mak[ing] the filing- 12 -

proper . . . and avoid[ing] exhaustion, default, an d timeliness hurdles in federal
court.” Ross , 365 F.3d at 1186.
B. Other Matters 1. References to a Separate Case In Proposition IV of his opening brief in this case , Plaintiff argued that the district court made contradictory rulings in two se parate opinions in two different cases, one of which gave rise to this appeal, and t he other of which gave rise to Patel v. Regnier , No. 04-6291. Plaintiff contends that in the opinion giving rise to this appeal the district court dismissed the act ion on the premise that the Plaintiff could not be deemed to have exhausted his administrative remedies because he filed a Request after he was transferred to a different prison instead of at the institution where the violations occurred. Plaintiff argues that in the opinion giving rise to Regnier , by contrast, the district court stated that Plain tiff would be allowed to re-file his Request at a transf eree prison because the BOP had indicated a willingness to let appellant pursue his grievances in that way. Plaintiff later withdrew his appeal in Regnier , and on December 16, 2004, we struck anything related to the fourth propositio n of Plaintiff’s opening brief in this case. On January 18, 2005, Plaintiff filed a motion asking us to reconsider our order striking anything related to the fourth p roposition that he raised in his opening brief. We rule in this opinion that Plaint iff failed to exhaust his7 We also note that because Plaintiff voluntarily dis missed his appeal in

Regnier , we do not have before us the record in that case. Even if we were inclined to revisit our December 16 order—which we are not—we would have no basis for determining whether the district court’s order giving rise to this appeal is inconsistent with the order giving rise to Regni er .

8 To the extent that there are other motions related to the interplay between this appeal and Regnierthat remain pending before us, we DENY those motions in light of our disposition of this appeal. This i ncludes, but is not limited to, Plaintiff’s response to Defendants’ motion to strik e the fourth issue raised by Plaintiff in his opening brief. That response was referred to the merits panel after the clerk’s office had already issued the December 16 order striking anything related to the issue. - 13 - administrative remedies because he did not timely f ile a written Administrative Remedy Request. This ruling has nothing to do withthe alleged inconsistency between the district court’s decision giving rise t o this appeal and the court’s decision giving rise to Regnierthat Plaintiff highlights in the fourth propositio n of his opening brief. Accordingly, we have no occa sion to revisit our order of December 16 striking anything related to the fourthproposition that Plaintiff raised in his opening brief and DENY Plaintiff’s motion to reconsider. 7 Plaintiff also moves to supplement the record to ad d the district court opinion giving rise to Regnier . In light of our denial of Plaintiff’s motion to reconsider, we DENY this motion to supplement the record as moot. 8

2. Copies of Filings On December 20, 2004, Plaintiff moved for an order forcing Defendants to provide a copy of their “Reply” brief and assorted other materials. We ruled on- 14 -

this motion on December 21, 2004. On December 28, 2004, Defendants submitted a response to Plaintiff’s December 20 mot ion. Because we have already resolved the issues addressed in Defendants ’ motion, we decline to revisit our December 21 order disposing of Plaintiff’s moti on requesting that we force Defendants to provide Plaintiff with copies of cert ain filings.
III. Conclusion For the foregoing reasons, we AFFIRM the judgment of the district court dismissing Plaintiff’s suit based on his failure to exhaust his administrative remedies. We DENY Plaintiff’s motion to reconsider and DENY as moot Plaintiff’s motion to supplement the record on appe al. Finally, we decline to revisit our order disposing of Plaintiff’s motion r equesting that we force Defendants to provide Plaintiff with copies of cert ain filings.