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

determined unanimously that oral argument would not materially 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 without 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 conditions 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 striking an issue

related to a separate case that he raised in his opening brief. We also DENY as

moot Plaintiff’s motion to supplement the record on appeal. Finally, we decline

to revisit our order disposing of Plaintiff’s motion requesting that we force

Defendants to provide Plaintiff with copies of certain filings, based on a response

that Defendants filed to that motion after we had already ruled on it.

I. Background

Plaintiff was incarcerated at the Federal Correctional 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. Plaintiff’s claims in this lawsuit

center on the alleged conditions of his incarceration at these two facilities. On
1Plaintiff alleged below that “the disparate treatment between himself and

the other inmates [at FCI El Reno] who were permitted to live in the non-smoking

unit, despite being similarly situated, violated the Fifth Amendment’s Equal

Protection Clause.” Plaintiff does not appear to assert 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 argument on appeal. 

2Plaintiff amended his complaint in February 2003.

- 3 -

July 9, 2001, Plaintiff was transferred to a federal correctional facility in Texas. 

This lawsuit does not involve the alleged conditions of his incarceration in that

Texas facility, or any other facility to which Plaintiff was subsequently

transferred.

In this suit, Plaintiff claims that “his Eighth Amendment rights to medical

care were violated by the deliberate indifference of prison officials at FCI El

Reno and FTC Oklahoma City in failing to treat a pinched nerve in his neck.” 

Plaintiff also claims that “his Eighth Amendment rights to be free from

unreasonable exposure to secondhand smoke were violated 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 [Plaintiff]’s requests for non-smoking

housing.”1

Plaintiff initiated this suit in December 2002 by filing a pro se complaint in

the United States District Court for the Western District of Oklahoma.2 On

December 16, 2002, the district court referred this case to a magistrate judge for
3Although Plaintiff filed his notice of appeal prematurely, the appeal is

nonetheless timely. The district court’s order dismissing 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, judgment entered 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 required 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 district 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 case 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 is timely. 

In this case, we need not address whether the “prisoner 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 he 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 recommended that the case be

dismissed without prejudice based on Plaintiff’s failure to exhaust his

administrative remedies. On March 30, 2004, the district court adopted the

magistrate judge’s report and recommendation over Plaintiff’s objections and

dismissed the case. On August 9, 2004, Plaintiff filed a notice of appeal.

II. Analysis

A. Plaintiff’s Failure to Exhaust Administrative Remedies

We review de novo a district court’s dismissal of an inmate’s suit for

failure to exhaust his or her administrative remedies. 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 address 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 “policy which favors deciding

cases on the merits as opposed to dismissing them because of minor technical

defects” in considering non-jurisdictional aspect of Fed. R. App. P. 3), but we

caution litigants that following the language of the 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 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); see also Porter v. Nussle, 534

U.S. 516, 524-25 (2002). As we explained in Jernigan, “[e]ven where the

‘available’ remedies would appear to be futile at providing the kind of remedy

sought, the prisoner must exhaust the administrative 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 exhaustion requirement, and . . . the

presence of unexhausted claims in [prisoner]’s complaint 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 the claims.”).

To exhaust his or her administrative remedies, an inmate in a federal prison

must complete a four-step process before filing suit. This process is laid out in

the Code of Federal Regulations, as well as a parallel Bureau of Prisons (“BOP”)

Program Statement. See generally 28 C.F.R. § 542 (2004); BOP Program

Statement 1330.13 (2002). First, an inmate usually must 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 Administrative Remedy Request

within twenty days of the date on which the basis for the Request occurred. Id. §

542.14(a). If the Request does not provide satisfactory 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 concept within its

exhaustion requirement. A prison procedure that is procedurally

barred and thus is unavailable to a prisoner is not thereby considered

exhausted. Regardless of whether a prisoner goes through the
4Because we have held that the PLRA contains a total exhaustion

requirement, see Ross, 365 F.3d at 1189, we need not address whether Plaintiff

also exhausted his administrative remedies regarding the denial of medical

treatment for his neck. We note, however, that Plaintiff first filed a Request

regarding the denial of medical treatment for his neck on September 12, 2001. 

Plaintiff filed a second Request regarding this denial of medical treatment on

September 26, 2002. Both Requests were filed long after Plaintiff was transferred

from FCI El Reno and FTC Oklahoma City.

5Plaintiff acknowledges that his Request was filed outside 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 filed 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 administrative remedies

by, in essence, failing to employ them. 

365 F.3d at 1186 (citations, quotations omitted).

In this case, Plaintiff failed to exhaust his administrative remedies

regarding his alleged exposure to secondhand smoke because he did not submit a

written Administrative Remedy Request within twenty days 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 necessarily filed more than

twenty days after the date on which the basis for the Request arose because

Plaintiff was not incarcerated at FCI El Reno after December 6,

2000—approximately nine months before Plaintiff filed his Request.5
6BOP Program Statement 1330.13(11)(b)(3) provides:

When deciding whether to reject a submission, Coordinators,

especially at the institution level, should be flexible, keeping in mind

that major purposes of this Program are to solve problems and be

responsive to issues inmates raise. Thus, for example, consideration

should be given to accepting a Request or Appeal that raises a

sensitive or problematic issue, such as medical treatment, sentence

computation, staff misconduct, even though the submission 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 deadline is flexible. The BOP

does encourage Remedy Coordinators to be flexible in 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 filings 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 response 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 must follow the rules governing

filing and prosecution of a claim . . . . [T]hese include time limits.”). Thus

Plaintiff’s belated filing must not be excused on the grounds that the twenty-day

filing deadline is flexible. 
- 9 -

Nor must Plaintiff’s belated filing be excused based 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 which prevented the

inmate from submitting the request within the established time frame. 

Valid reasons for delay include the following: an extended period

in-transit during which the inmate was separated from documents

needed to prepare the Request . . . ; an extended period 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 dispositions . . . was

delayed.

28 C.F.R. § 542.14(b).

In this case, Plaintiff explains that he did not file his Request earlier

because he was “earnestly” attempting to resolve his 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 unilaterally extend the twenty-day

time limit for making a formal filing based on a desire to resolve his or her claims

informally. In this case, no official within the Bureau 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 for filing a formal Request. 

Moreover, we see no basis in the record that suggests that the Bureau of Prisons
- 10 -

should have granted Plaintiff an extension. Plaintiff cannot explain how he was

attempting to resolve his concerns informally with the staff at FCI El

Reno—much less explain why those informal resolution attempts took “an

unusually long period,” id.—when he had been transferred from FCI El Reno

more than nine months previously and presumably had had no contact with the

staff at FCI El Reno after his transfer. Thus, Plaintiff’s contention that his delay

in filing a Request was justified is without merit.

Finally, Plaintiff’s belated filing cannot be excused on the grounds that the

filing was considered on the merits despite its lateness. In Ross, we stated that

“[i]f a prison accepts a belated filing, and considers 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.3d at 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 Plaintiff’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 mention FCI El Reno in his

response to Plaintiff’s appeal of the Warden’s determination. Finally, the

response to Plaintiff’s appeal to the Office of General Counsel states that “the

Warden and the Regional Director adequately responded to the issues [Plaintiff]

raised in [his] appeal.” The response does go on to paraphrase the general policy

of FCI El Reno regarding the incarceration of smokers 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-smokers 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 avoided except

when institution needs require housing of a smoking and nonsmoking inmate in the same cell. . . . [I]nmates who are found to be

in violation of smoking in non-smoking areas are subject 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 regarding 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 smoking unit and/or in a cell with

a chain smoker; (4) Plaintiff was exposed to secondhand 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 of 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, and 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 separate opinions in two different

cases, one of which gave rise to this appeal, and the 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 action 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 Plaintiff

would be allowed to re-file his Request at a transferee 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 proposition 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 proposition that he raised in his

opening brief. We rule in this opinion that Plaintiff failed to exhaust his
7We also note that because Plaintiff voluntarily dismissed 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 Regnier.

8To the extent that there are other motions related to the interplay between

this appeal and Regnier that remain pending before us, we DENY those motions

in light of our disposition of this appeal. This includes, but is not limited to,

Plaintiff’s response to Defendants’ motion to strike 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 file a written Administrative

Remedy Request. This ruling has nothing to do with the alleged inconsistency

between the district court’s decision giving rise to this appeal and the court’s

decision giving rise to Regnier that Plaintiff highlights in the fourth proposition

of his opening brief. Accordingly, we have no occasion to revisit our order of

December 16 striking anything related to the fourth proposition that Plaintiff

raised in his opening brief and DENY Plaintiff’s motion to reconsider.7

Plaintiff also moves to supplement the record to add 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 motion. Because we have

already resolved the issues addressed in Defendants’ motion, we decline to revisit

our December 21 order disposing of Plaintiff’s motion requesting that we force

Defendants to provide Plaintiff with copies of certain 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 appeal. Finally, we decline to

revisit our order disposing of Plaintiff’s motion requesting that we force

Defendants to provide Plaintiff with copies of certain filings.