* After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. This Order and Judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1 Plaintiff was released from custody prior to filing his notice of appeal, and thus the filing fee provisions of the Prison Litigation Reform Act do not apply to this appeal. See 28 U.S.C. § 1915(a), (b), (h); Whitney v. New Mexi co , 113 F.3d (continued...) 

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

### FEB 19 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STEPHEN JOE HOOVER, Plaintiff - Appellant, v. KELLY WEST; EARL MARKLAND; ROYCE MELTON; J. D. DAVIS; GARY GIBSON; RANDALL WORKMAN; FRANK KEATING, Defendants - Appellees. No. 03-7106 (D.C. No. CIV-02-418-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , MURPHY, and McCONNELL , Circuit Judges.
Stephen J. Hoover (“Plaintiff”), a former Oklahoma prisoner appearing pro

se and in forma pauperis , 1 filed this action pursuant to 42 U.S.C. § 1983 whi le he1 (...continued)

1170, 1171 n.1 (10th Cir. 1997). Based on our revi ew of Plaintiff’s financial declarations, we grant his motion to proceed in forma pauperis on appeal. See 28 U.S.C. § 1915(a)(1). - 2 - was incarcerated. The district court granted Defen dants’ motion to dismiss for failure to exhaust administrative remedies under 42 U.S.C. § 1997(e)(a), and Plaintiff now appeals. For the following reasons, we AFFIRM the district court’s order.
BACKGROUND Plaintiff alleged that on August 1, 2000, Sergeant Kelly West, supervised and assisted by other prison officials, assaulted and battered Plaintiff while he was wearing full restraints during his cellmate’s c ell abstraction. The next day, Plaintiff submitted a “Request to Staff” to Randall Workman, a Deputy Warden, who denied it on August 16, 2000. Plaintiff then f iled a grievance to the Warden on that same day. On August 21, 2000, the Warden’s office returned the grievance to Plaintiff unanswered on the ground that Plaintiff had previously filed a grievance regarding the same issue. Defendants h ave since conceded that the Warden’s office made a mistake regarding this ratio nale, as no other previous grievance was filed regarding this incident. Plaintiff then appealed the issue to the Administrative Review Authority (ARA), which returned his grievance unanswered on A ugust 31, 2000 because he2 Plaintiff did attempt to refile his grievance to th e Administrative Review

Authority (ARA) on June 21, 2002. However, the ARAreturned it for untimeliness because it was filed almost two years after he had been given ten days to correct the above deficiencies. - 3 - had improperly attached additional pages to the gri evance and because he had not received a response from the facility head (the War den). The Administrative Review Authority gave Plaintiff ten additional days to correct the deficiencies and properly submit the grievance. Instead of attempti ng to cure during this time period, 2 Plaintiff filed a lawsuit in the Eastern District of Oklahoma pursuant to 42 U.S.C. § 1983, alleging cruel and unusual punish ment in violation of the Eighth Amendment and denial of due process in violation of the Fourteenth Amendment. Defendants moved to dismiss under Rule 12(b)(6) on the ground that Plaintiff had failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997(e)(a). The district court granted th e motion and Plaintiff now appeals.
DISCUSSION We exercise jurisdiction over this appeal from the district court’s final order pursuant to 28 U.S.C. § 1291. We review de novo the district court’s dismissal for failure to exhaust administrative rem edies under 42 U.S.C. § 1997(e)(a). Jernigan v. Stuchell , 304 F.3d 1030, 1032 (10th Cir. 2002).3 The government asserts, without citation to the rec ord or reference to

dates, that Plaintiff was still incarcerated at the date of filing his complaint. Plaintiff does not seem to contest this. Therefore , it appears that the PLRA exhaustion requirement applies. - 4 - A. The Exhaustion Requirement of the Prison Litigation Refo rm Act (PLRA) The general rule is that plaintiffs need not exhaus t administrative remedies before filing a § 1983 suit. Porter v. Nussle , 534 U.S. 516, 523 (2002). However, as part of the 1996 Prison Litigation Refo rm Act (PLRA), Congress added an exhaustion requirement for prisoners’ suit s regarding prison conditions. 42 U.S.C. § 1997(e)(a). The provision, entitled “S uits by Prisoners,” provides: No action shall be brought with respect to prison c onditions 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 exhaus ted. 42 U.S.C. § 1997(e)(a). The Supreme Court has heldthat this exhaustion requirement for suits regarding “prison conditions” applies to “all inmate suits about prison life, whether they involve general cir cumstances or particular episodes, and whether they allege excessive force o r some other wrong.” 3 Porter , 534 U.S. at 531. “Although section 1997(e)(a) mandates the exhaustio n of administrative remedies, a plaintiff’s failure to fulfill a statut ory requirement does not necessarily deprive the federal courts of subject m atter jurisdiction.” Chelette v.4 Therefore, Plaintiff is correct when he argues that§ 1997(e)(a) is not

jurisdictional. However, this argument does not ge t him far as the district court would still have been required to dismiss his compl aint had he failed to exhaust. Section 1997(e)(a) is mandatory and requires dismis sal of any case in which an available administrative remedy has not been exhaus ted. - 5 - Harris , 229 F.3d 684, 687 (8th Cir. 2000). The Supreme C ourt has held that the language of the exhaustion requirement must contain“‘sweeping and direct’ language indicating that there is no federal jurisd iction prior to exhaustion, or else the exhaustion requirement is treated as an elementof the underlying claim.” Id. (quoting Weinberger v. Salfi , 422 U.S. 749, 757 (1975)). Because § 1997(e)(a) does not contain this sort of “sweeping and direct” language, every circuit court that has considered the issue has found that the PL RA exhaustion requirement is not jurisdictional. Id. (collecting cases); see also Ali v. District of Columbia , 278 F.3d 1, 5-6 (D.C. Cir. 2002) (same). We recently j oined our sister circuits in finding that the PLRA exhaustion requirement, altho ugh mandatory, is not a prerequisite to our jurisdiction. 4 Steele v. Federal Bureau of Prisons , __ F.3d __, 2003 WL 23019855, *3 (10th Cir. 2003). An inmate must not only begin the administrative gr ievance process in order to meet the exhaustion requirement, but must also complete it in compliance with administrative rules. Jernigan , 304 F.3d at 1032. Even if the administrative process does not provide the particular relief soug ht by the plaintiff, he or she is still required to exhaust all administrative proced ures that are available. Booth v.- 6 -

Churner , 532 U.S. 731, 741 (2001). Similarly, the plainti ff is required to exhaust all available procedures offered by the prison evenif doing so appears “futile.” Jernigan , 304 F.3d at 1032; see also Giano v. Goord , 250 F.3d 146, 150-51 (2d Cir. 2001) (“[T]he alleged ineffectiveness of the a dministrative remedies that are available does not absolve a prisoner of his obligation to exhaust such remedies[.]”); Perez v. Wisconsin Dep’t of Correcti ons , 182 F.3d 532, 536-37 (7th Cir. 1999) (finding that the PLRA exhaustion r equirement has no “futility exception,” and stating that “[n]o one can know whether administrative requests will be futile; the only way to find out is to try” ) (emphasis in original).

B. Defendants’ administrative procedure provided a r emedy that triggered the exhaustion requirement of § 1997(e)(a ). Plaintiff first argues that the Oklahoma Departme nt of Corrections (“DOC”) provides no remedy for his allegations. Ac cording to Plaintiff, this is because the grievance process cannot be used to dis cipline staff and because the Oklahoma Governmental Tort Claims Act does not prov ide a cause of action for “individual non-official acts.” (Aplt. Br. at 10-1 1.) However, the Supreme Court has held that as long as the administrative procedures have “authority to take some action in response to a complaint,” that is enough of a remedy to trigger the exhaustion requir ement. Booth , 532 U.S. at 736 (emphasis added). For example, although the proced ures may not provide5 Defendants now concede that the Warden erred in thi s initial refusal to

respond to Plaintiff’s grievance, as there existed no previous grievances on this August 1, 2000 incident. - 7 - monetary relief, they might provide for transfer to another facility or at least a hearing on grievances. See Larkin v. Galloway , 266 F.3d 718, 723 (7th Cir. 2001). Plaintiff does not argue that transfers or hearings were not available through this process, and it is not sufficient for him to simply point to the lack of either a tort cause of action or an inmate-initiate d disciplinary action against staff. The administrative procedures provided some remedy and Plaintiff is obligated to exhaust those procedures even if the available reme dy is not one of his choosing.
See Booth , 532 U.S. at 741.

C. Plaintiff did not exhaust all “available” adminis trative procedures, and Defendants’ actions did not render these procedures “unavailable.” Plaintiff next argues that he exhausted all adminis trative procedures that were available to him and that any further procedur es were made “unavailable” by Defendants’ actions. He is frustrated by the fact that the Warden initially erred in declining to respond to his grievance based on the misconception that a previous grievance had been filed on the same issue. 5 Yet, when Plaintiff attempted to appeal, the Administrative Review Authority (ARA) r efused to respond in part because the Warden had not yet responded. It is true that Plaintiff seems to have- 8 -

been caught in a catch-22. However, the ARA gave h im ten days to cure this deficiency, and instead of even attempting to obtai n a response from the Warden or explain the mistake to the ARA within that time period, he filed the instant suit in district court. Plaintiff is correct that § 1997(e)(a) only require s him to exhaust administrative procedures that are made “available” to him. Courts “refuse to interpret the PLRA so narrowly as to permit prison officials to exploit the exhaustion requirement through indefinite delay in responding to grievances.”
See Lewis v. Washington , 300 F.3d 829, 833 (7th Cir. 2002) (quotation omitted). Instead, we examine the plain meaning of the term “ available” in § 1997(e)(a) and find that a prisoner is only required to exhaust th ose procedures that he or she is reasonably capable of exhausting. See Underwood v. Wilson , 151 F.3d 292, 295 (5th Cir. 1998). For example, “[T]he failure [of p rison officials] to respond to a grievance within the time limits contained in the g rievance policy renders an administrative remedy unavailable.” Jernigan , 304 F.3d at 1032. Similarly, a prisoner lacks “available” remedies where prison of ficials deny him or her the necessary grievance forms. Mitchell v. Horn , 318 F.3d 523, 529 (3d Cir. 2003). Where prison officials prevent or thwart a prisonerfrom utilizing an administrative remedy, they have rendered that reme dy “unavailable” and a court- 9 -

will deem that procedure “exhausted.” See Lyon v. Vande Krol , 305 F.3d 806, 808 (8th Cir. 2002); Miller v. Norris , 247 F.3d 736, 740 (8th Cir. 2001). However, in the instant case, Plaintiff was given t en days to cure the deficiency, yet failed to make any such attempt. T his is similar to the situation we faced in Jernigan , 304 F.3d at 1032-33, where we held that the plain tiff had not exhausted his remedies where he failed to cure a deficiency in his appeal related to obtaining a response from the head priso n official, even though it may have been the prison official’s fault for misplacin g his grievance. We noted that the plaintiff “was given ten days to cure the defic iency in question which no doubt would have involved informing prison official s of the lost or misfiled grievance.” Id. at 1032. We stated that the plaintiff could not “ successfully argue that he had exhausted his administrative reme dies by, in essence, failing to employ them[.]” Id. at 1033. There, as here, the grievance policy pro vided a time frame for prison officials’ responses, after which the plaintiff could appeal with evidence of attempts to obtain a response. Id. Plaintiff has not shown us any reason why he could not have brought the mistake re garding the previous grievance to the Warden’s attention (or the ARA’s) within the 10-day time period. Because he did not even try to cure this deficiency , we affirm the district court’s dismissal for lack of exhaustion. See id.- 10 -

D. Defendants are not equitably estopped from moving to dismiss for failure to exhaust

. Finally, Plaintiff argues that because it was Defen dants’ mistake that caused him to fall short of fully exhausting the ad ministrative procedures, they should be equitably estopped from moving to dismiss based on § 1997(e)(a). We disagree. “The Fifth Circuit is the only circuit to hold thatequitable estoppel can apply to the PLRA exhaustion requirement.” Lewis , 300 F.3d at 834 (citing Wendell v. Asher , 162 F.3d 887, 890 (5th Cir. 1998)). This holding is “persuasive because non-jurisdictional prerequisite s to suit in federal court are typically subject to equitable estoppel.” Id. (citing Zipes v. Trans World Airlines,
Inc. 455 U.S. 385, 393 (1982)). However, the Seventh and Tenth Circuits have so far declined to decide whether equitable estoppel applies because their cases have fallen short of meeting the elements of equitable e stoppel. See id. ; Jernigan , 304 F.3d at 1033. To establish equitable estoppel, the party claiming estoppel must show: (1) a misrepresentation by the opposing party; (2) reas onable reliance on that misrepresentation; and (3) detriment. Emery Mining Corp. v. Secretary of Labor , 744 F.2d 1411, 1417 (10th Cir. 1984). It is also w ell-settled that the “Government may not be estopped on the same terms a s any other litigant,” and the burden on the party seeking estoppel against th e government is heavier.- 11 -

Heckler v. Cmmty. Health Servs. of Crawford County , 467 U.S. 51, 60 (1984). “When asserting equitable estoppel against the gove rnment, one must also prove affirmative misconduct.” Lewis , 300 F.3d at 834. In the instant case, Plaintiff merely argues that t he prison officials have “misrepresented” that they have a grievance procedu re and that they will answer grievances. (Aplt. Br. at 18.) However, he has po inted to no statement made to him regarding his grievance or the deadlines which could constitute a misrepresentation. Nor does he show that he reliedon any of Defendants’ statements to him. In fact, Plaintiff was the one who knew that Defendants’ statements regarding his previous grievance were mi staken. Just like the plaintiff in Jernigan , Plaintiff cannot show detrimental reliance on pri son officials. See Jernigan , 304 F.3d at 1033 (stating that plaintiff could no t show detrimental reliance, “having been told that his grievance had been lost or misfiled and having been given an opportunity to cure”). Because Plaintiff fails to show either a misrepresentation or detrimental reliance, he has c learly failed to state a claim regarding equitable estoppel. Thus, we need not re ach the issue of whether equitable estoppel applies to the PLRA exhaustion r equirement.
CONCLUSION For the foregoing reasons, we AFFIRM the order of the district court- 12 -

dismissing Plaintiff’s § 1983 claim for failure to exhaust under § 1997(e)(a).

ENTERED FOR THE COURT

David M. Ebel Circuit Judge