UNITED STATES COURT OF APPEALS TENTH CIRCUIT

DAVID ROBIN WHITMORE, Plaintiff - Appellant,

v. LIEUTENANT JONES; LIEUTENANT BENOIT; LIEUTENANT HARDING, Facility Investigator; MARK BOWEN, Deputy Warden, Defendants - Appellees. No. 11-6167 (D.C. No. 5:10-CV-00430-M) (W.D. Okla.)

ORDER AND JUDGMENT *

Before LUCERO , EBEL, and GORSUCH , Circuit Judges.

Plaintiff-Appellant David Whitmore, an inmate in the cust ody of the Oklahoma Department of Corrections (“ODOC”), appeal s the dismissal of his 42 U.S.C. § 1983 claims for failure to exhaust administrative re medies. Having jurisdic tion to consider this

* After examining appellant = s brief and the appellate record, this panel has determined unanimously that oral argument wo uld not materially assi st 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 argu ment. This order and judgment is not binding precedent, except under the doctri nes of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 11, 2012
Elisabeth A. Shumaker Clerk of Court2 appeal under 28 U.S.C. § 1291, we vacate the district court’s decision and remand for further proceedings. 1
I. Background Whitmore sued several prison officials, alleging the following three § 1983 claims: 1) Lieutenant Jones, a prison officer, threatened , in front of a number of inmates, to have an inmate stab Whitmore; 2) Lieutenant Be noit, another prison officer, conspired to call Whitmore a “snitch” in front of other inmates in order to incite thos e inmates to beat up Whitmore; and 3) prison offi cials did not properly in vestigate these incidents. 2 The district court granted Defendants summary judgment on all of these claims, concluding Whitmore had failed to exhaust his administrative remedies. We review a summary judgment decision de novo, viewing th e evidence in the light most favorable to the non-moving party, here Whitmore. See Kl en v. City of Lovela nd, 661 F.3d 498, 507- 08 (10th Cir. 2011). Summary judgment is approp riate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Because Whitmore is proceeding pro se, we liberally construe his pleadings. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam).

1 We GRANT Whitmore’s motion filed with this court seeking to pursue this appeal in forma pauperis. See 28 U.S.C. § 1915(a).

2 Whitmore argues on appeal that the district court should have construed his complaint also to state “First Amendment claims” for re taliation and “bad faith investigation.” We need not address that argument here, but leave it for the district court on remand.3 II. Exhaustion of administrative remedies generally 42 U.S.C. § 1997e(a) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any othe r Federal law, by a prisoner confined in any jail, prison, or other co rrectional facility until such administrative remedies as are available are exhausted. ” The prison’s procedures define the administrative remedies that mu st be exhausted. See Little v. Jones, 607 F.3d 1245, 1249 (10th Cir. 2010) (citing Jones v. Bock , 549 U.S. 199, 218 (2007)). The ODOC procedures relevant in this cas e require an inmate first to seek two informal administrative remedies by verba lly complaining to th e appropriate staff member and then, if necessary, by submitting to the appropriate staff member a written “Request to Staff.” If the inmate does not receive the remedy he th us sought informally, he may then file a formal written grievance with the “administrative reviewing authority” and, if unsuccessful, he may pursue an admi nistrative appeal from the denial of his formal grievance. There are specific time frames within which the in mate must initiate each step in the administrative review process. Because failure to exhaust administrative remedies is an affirmative defense, the defendant bears the burden of raising this defe nse and establishing that the inmate failed to exhaust all of his administrative remedies . See Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011) (citing Jones, 549 U.S. at 212). As an affirmative defense, we will address only the failure-to-exhaust arguments raised by the defendants. See Howard v. Waide, 534 F.3d 1227, 1244 (10th Cir. 2008). Further, an inmate is only required to4 exhaust those remedies that are available to him. See Tuckel, 660 F.3d at 1252. A remedy is not available when prison official s hinder, thwart, or prevent an inmate’s attempts to exhaust that reme dy. See id. It is the inmate who bears the burden of establishing that prison officials made an ad ministrative remedy unavailable to him. See id. at 1254.
III. Whether Whitmore exhausted all admini strative remedies available to him Whitmore claimed that he sought inform al administrative relief for the incidents underlying the § 1983 claims at issue here by reporting them to both his unit manager, Underwood, and a prison investigator, Defe ndant Harding. Defendants have never argued that Whitmore failed properly and fully to exhaust these informal remedies. In fact, before the district court, Defendant s expressly disavowed such an argument. Nonetheless, the district court focused its d ecision to dismiss Whitmore’s claims, in part, on the court’s determination that Whitmore had failed to exhaust fully his informal remedies sought through Underw ood. In particular, the di strict court concluded that Whitmore failed to pursue fully his grievanc e No. 10-157, which sought a response from Underwood to the written “Request to Sta ff” Whitmore had submitted to Underwood. The district court erred in dismissing Whitmore’s claims on this basis because Defendants never challenged the propriety of Whitmore’s exhaustion of his informal remedies. See Howard, 534 F.3d at 1243. Defendants did affirmatively assert th at Whitmore failed to exhaust fully his formal remedies. Before the district c ourt, Defendants initially argued that Whitmore5 failed to file any formal grievance regardi ng the incidents underlying his § 1983 claims at issue here. But Whitmore responded by producin g a copy of such a grievance that he had filed with prison officials, after complaining in formally to Harding. In reply, Defendants revised their affirmative defense to assert instead that Whitmore had filed the relevant grievance, No. 10-215, out of time and had requested action from prison officials that could not be addressed in a grievance. De fendants still argued to the district court, therefore, that Whitmore had failed to exha ust his formal administrative remedies fully and properly. Whitmore countered that, ev en so, prison officials had made those unexhausted formal remedies unavailable to him by thwarting and obstructing his efforts to exhaust them. The district court erred by dismissing Whitmore’s claims as unexhausted without ever addressing that ar gument. See Tuckel, 660 F.3d at 1252. “[W]e have obligated district courts to en sure that any defects in exhaustion are not procured from the action or inaction of pris on officials.” Id. (internal quotation marks omitted). For that reason, we remand this case to the district court for its consideration of Whitmore’s contention that prison officials th warted his attempts to exhaust his formal administrative remedies as they pert ain to his grievance No. 10-215.
IV. Conclusion For the foregoing reasons, we VACATE th e district court’s decision dismissing Whitmore’s 42 U.S.C. § 1983 claims and REMA ND this case for proceedings consistent6 with this order and judgment. 3 We remind Whitmore that he remains obligated to make partial payments until the filing fee he ow es in this case is paid in full.
ENTERED FOR THE COURT

David M. Ebel Circuit Judge

3 Whitmore further asserts on appeal that the district court erred in not allowing him to conduct discovery in order to respond to th e exhaustion defense De fendants presented in their summary judgment motion. If Whitmore pr esents the discovery issue to the district court on remand, see Fed. R. Civ. P. 56(d), the district court should address it then. Whitmore also challenges on appeal the distri ct court’s decision to dismiss as moot his motions for appointment of coun sel and for a temporary restraining order. If the district court concludes on remand that Whitmore did exhaust all available administrative remedies, then the court can consid er Whitmore’s other motions anew.