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 custody of the Oklahoma 

Department of Corrections (“ODOC”), appeals the dismissal of his 42 U.S.C. § 1983 

claims for failure to exhaust administrative remedies. Having jurisdiction to consider this 

 

*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. This order and judgment is not 

binding precedent, except under the doctrines 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 Court
2 

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 Benoit, another prison officer, conspired to call 

Whitmore a “snitch” in front of other inmates in order to incite those inmates to beat up 

Whitmore; and 3) prison officials did not properly investigate 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 the evidence in the light most favorable to 

the non-moving party, here Whitmore. See Klen v. City of Loveland, 661 F.3d 498, 507-

08 (10th Cir. 2011). Summary judgment is appropriate “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 retaliation 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 other Federal law, by a prisoner 

confined in any jail, prison, or other correctional facility until such administrative 

remedies as are available are exhausted.” The prison’s procedures define the 

administrative remedies that must 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 case require an inmate first to seek two 

informal administrative remedies by verbally complaining to the 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 thus sought informally, 

he may then file a formal written grievance with the “administrative reviewing authority” 

and, if unsuccessful, he may pursue an administrative appeal from the denial of his 

formal grievance. There are specific time frames within which the inmate 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 defense 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 to 
4 

exhaust those remedies that are available to him. See Tuckel, 660 F.3d at 1252. A 

remedy is not available when prison officials hinder, thwart, or prevent an inmate’s 

attempts to exhaust that remedy. See id. It is the inmate who bears the burden of 

establishing that prison officials made an administrative remedy unavailable to him. See 

id. at 1254. 

III. Whether Whitmore exhausted all administrative remedies available to him 

 Whitmore claimed that he sought informal 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, Defendant Harding. Defendants have never 

argued that Whitmore failed properly and fully to exhaust these informal remedies. In 

fact, before the district court, Defendants expressly disavowed such an argument. 

Nonetheless, the district court focused its decision to dismiss Whitmore’s claims, in part, 

on the court’s determination that Whitmore had failed to exhaust fully his informal 

remedies sought through Underwood. In particular, the district court concluded that 

Whitmore failed to pursue fully his grievance No. 10-157, which sought a response from 

Underwood to the written “Request to Staff” 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 that Whitmore failed to exhaust fully his 

formal remedies. Before the district court, Defendants initially argued that Whitmore 
5 

failed to file any formal grievance regarding the incidents underlying his § 1983 claims at 

issue here. But Whitmore responded by producing a copy of such a grievance that he had 

filed with prison officials, after complaining informally 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. Defendants still argued to the district court, 

therefore, that Whitmore had failed to exhaust his formal administrative remedies fully 

and properly. Whitmore countered that, even 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 argument. See Tuckel, 660 F.3d at 1252. 

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

procured from the action or inaction of prison 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 thwarted his attempts to exhaust his formal 

administrative remedies as they pertain to his grievance No. 10-215. 

IV. Conclusion 

 For the foregoing reasons, we VACATE the district court’s decision dismissing 

Whitmore’s 42 U.S.C. § 1983 claims and REMAND this case for proceedings consistent 
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with this order and judgment.3 We remind Whitmore that he remains obligated to make 

partial payments until the filing fee he owes 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 the exhaustion defense Defendants presented in 

their summary judgment motion. If Whitmore presents 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 district court’s decision to dismiss as moot his 

motions for appointment of counsel 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 consider Whitmore’s other motions anew.