UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

MICHAEL ANTHONY WHITESELL, Plaintiff-Appellant, No. 17-4050
v. (D.C. No. 2:13- CV-1043-DAK) (D. Utah) BRUCE O. BURNHAM, Defendant-Appellee.

ORDER AND JUDGMENT *

Before HARTZ , HOLMES , and BACHARACH , Circuit Judges.
This appeal involves an actio n under 42 U.S.C. § 1983 by Mr. Michael Whitesell. Mr. Whit esell served two stints in prison: one in 2010 and another in 2013. In his first pris on term, he alle gedly encountered deliberate indifference to a serious medical condition and eventually sued.

* The parties do not request oral argu ment, and we do not believe that oral argument would be helpful. As a result, we are deci ding the appeal based on the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This order and judgme nt does not constitute bi nding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be ci ted for its persuasive value under Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). FILED United States Court of Appeals Tenth Circuit 

### December 5, 2017
Elisabeth A. Shumaker Clerk of Court2 Under federal law, he had to exhaust administrative remedies before suing. 42 U.S.C. § 1997e(a). He didn’t, and the distri ct court granted the defendant’s motion for summary judgment. Mr. Whitesell appeals and seeks leav e to proceed in forma pauperis. We affirm and grant leave to proceed in forma pauperis. 1. Standard of Review In deciding the appeal, we engage in de novo review, viewing the evidence in the ligh t most favorable to Mr. Whitesell. Tuckel v. Grover , 660 F.3d 1249, 1251 (10th Ci r. 2011). Viewing the ev idence in this light, we must determine whet her Mr. Whitesell properl y completed available remedies. The undispu ted evidence shows that he did not.

2. Exhaustion Under federal law, a prisoner cannot bring suit under § 1983 regarding prison conditi ons until he or she co mpletes the prison’s administrative process. See Jernigan v. Stuchell , 304 F.3d 1030, 1032 (10th Cir. 2002) (“An inma te who begins the grie vance process but does not complete it is barred from pursuing a § 1983 claim . . . for failure to exhaust his administrative remedies.”). Thus, we start with the administrative remedies that were available to Mr . Whitesell. The first step in the administrative process (called “Level One”) was to file a grievance within seven working days of an incident or the date that the prisoner knew or should have know n about a grievabl e incident. If3 the prisoner was dissatisfi ed with the response, he or she could file a grievance appeal (called “Level Two” ) to the warden or designee within five working days of r eceiving the response. And if the prisoner remained dissatisfied with the outcome, he or sh e could file another grievance appeal (called “Level Three”) wi thin five working days to the Hearing Office of the Utah Department of Corrections. 3. Mr. Whitesell’s Allegations and Administrative Steps The alleged denial of medical attention took place in February 2010. According to Mr. Whitesell , he contracted pneumo nia because of the poor medical treatment. But Mr. Whitesell did not submit a grievance, and he was released from prison and hospitalized roughly four months later. At that point, of course, he could not take advantage of the prison’s administrative requirements. He eventually returned to prison in 2013. Upon his return to prison, he filed a grievance based on the me dical treatment rece ived three years earlier. But he was out of time to file a grievance based on his medical treatment in February 2010; a grievance had be en due within seven working days of the incident or the da te that he should have known of a grievable incident. Authorities declined to consider the grievance on the ground that it was late. Months later, Mr. Whitesell s ubmitted a Level Two appeal. This appeal was also deni ed, and Mr. Whitesell never pursued a Level Three appeal.4 Mr. Whitesell argues that (1) he did not know about the mistreatment until administrative remedies became unavailable, (2) he had no available remedy because the deadline for a gr ievance had passed, and (3) a Level Three appeal would have been fu tile. We reject these arguments. Mr. Whitesell argues that he di d not know that he had pneumonia until he was hospitalized four months later. But Mr. Whit esell did not need a medical diagnosis to su bmit a grievance for impr oper medical treatment. And he cannot avoid exha ustion by failing to take advantage of available remedies until the passage of time renders them unavailable. Woodford v. Ngo , 548 U.S. 81, 87 (2006) . But even if Mr. Whitesell co uld be excused from submitting the grievance out of time, he was again late when he filed an administrative appeal at Level Two. And when he obtained an unfavorable decision, he fa iled to file anything at Level Three. The failure to properly complete Levels Two and Three would foreclose exhaustion even if the delay at Level One had otherwise been excusable. See id . at 95. Mr. Whitesell also argues that a Level Three appeal would have been futile because a grievance officer stat ed that such an appeal would be rejected. In urging futility, Mr. Wh itesell relies on Justice Breyer’s concurrence in Woodford v. Ngo , 548 U.S. 81 (2006); see id . at 103-04 (Breyer, J. concurring). But Justice Breyer was not speaking for a majority, and a majority of the Supreme Court ha s held that futility does not excuse exhaustion under § 1997e(a). Booth v. Churner , 532 U.S. 731, 741 n.65 (2001). Thus, the failure to pursue a Level Three appeal cannot be excused based on futility.
* * * In these circumstances, the district court correctly concluded that no genuine issue of material fact existe d on the issue of exhaustion. As a result, we affirm the award of su mmary judgment to the defendant. 4. Timing of the Distri ct Court’s Decision Mr. Whitesell also contends that th e district court wa ited too long to decide the summary-judgment motion. According to Mr. Whitesell, the district court’s failure to decide th e motion within 180 days required a default judgment in favor of the plaintiff. No support exists for this argument: a district court’s delay in deciding a summary -judgment motion does not support a decision by defaul t for either side. 5. Leave to Proceed in Forma Pauperis Though we affirm the aw ard of summary judgment to the defendant, we grant leave to Mr. Whitesell to proceed in forma pauperis. Entered for the Court

Robert E. Bacharach Circuit Judge6 17-4050 Whitesell v. Burnham HARTZ , Circuit Judge, concurring:

I concur because of failure to exhaust appellate remedies.