UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

STEVEN R. WILSON, 

 Plaintiff-Appellant, 

v. 

LT. RYAN BEZONA; CMC ACC SGT. 

MATHIS; CMC ACC CO-I WAGNER, 

 Defendants-Appellees. 

No. 12-1078 

(D.C. No. 1:10-CV-00756-REB-KLM) 

(D. Colo.)

 

ORDER AND JUDGMENT*

 

Before GORSUCH, Circuit Judge, BRORBY, Senior Circuit Judge, and HOLMES, 

Circuit Judge. 

 

 

 Steven R. Wilson, a prisoner at the Colorado Department of Corrections’ 

Arrowhead Correctional Center (Arrowhead), appeals the district court’s grant of 

summary judgment in favor of three Arrowhead officials, on his claims brought 

pursuant to 42 U.S.C. § 1983. Specifically, he alleges that defendants violated his 

constitutional rights by refusing to accept legal mail sent to him at Arrowhead, and 

 

* After examining the briefs and 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); 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 

October 10, 2012

Elisabeth A. Shumaker 

Clerk of Court
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by not informing him that they had rejected the mail. He also alleges that defendants 

violated his constitutional rights by refusing to provide him with the addresses of 

attorneys who sought to contact him at Arrowhead by mail. 

 Defendants moved for summary judgment arguing, in pertinent part, that 

Mr. Wilson had failed to exhaust available administrative remedies before filing this 

lawsuit, as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. 

§ 1997e(a).1

 The magistrate judge agreed with the defendants. She found that 

Mr. Wilson did not comply with the Colorado Department of Corrections’ 

Administrative Regulation 850-04 § (IV)(B)(4)(a), which provides that “[g]rievances 

that are submitted without copies of former steps and responses shall be denied on 

procedural grounds. The offender in that case will not have exhausted his administrative 

remedies.” R. at 239. The magistrate judge also found that Mr. Wilson failed to produce 

any evidence supporting his conclusory assertion that he and other inmates do not have 

“any way to make copies of their grievance forms,” such that it is impossible to comply 

with 850-04 § (IV)(B)(4)(a). Wilson v. Bezona, No. 10-cv-00756-REB-KLM, 2011 WL 

7425472, at *6 (D. Colo. May 23, 2011). Cf. Little v. Jones, 607 F.3d 1245, 1250 

(10th Cir. 2010) (“Where prison officials prevent, thwart, or hinder a prisoner’s efforts to 

 

1

 Congress has directed that no suit over prison conditions may be brought 

“until such administrative remedies as are available are exhausted.” 42 U.S.C. 

§ 1997e(a). The PLRA requires “proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 

93 (2006). This includes “compliance with an agency’s deadlines and other critical 

procedural rules.” Id. at 90. In other words, a prisoner must comply with procedural 

“rules that are defined not by the PLRA, but by the prison grievance process itself.” 

Jones v. Bock, 549 U.S. 199, 218 (2007). 
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avail himself of an administrative remedy, they render that remedy unavailable and a 

court will excuse the prisoner’s failure to exhaust.” (internal quotation marks omitted)). 

Ultimately, the magistrate judge concluded that there was “no genuine issue of material 

fact” regarding whether Mr. Wilson had “failed to exhaust his administrative 

remedies before filing this action.” Wilson, 2011 WL 7425472, at *7. Accordingly, 

she recommended granting summary judgment in defendants’ favor and dismissing 

the case without prejudice. See Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1113 

(10th Cir. 2007) (noting Supreme Court’s teaching “that courts should . . . 

dismiss . . . unexhausted claims without prejudice” (emphasis added)). Upon de novo 

review, the district court adopted the magistrate judge’s recommendation, granted 

summary judgment, and dismissed the case for failure to exhaust administrative 

remedies. Its dismissal, however, was “with prejudice.” Wilson v. Bezona, 

No. 10-cv-00756-REB-KLM, 2012 WL 628620, at *2 (D. Colo. Feb. 27, 2012). This 

appeal followed. 

 Because Mr. Wilson is proceeding pro se, we construe his filings liberally. 

See Erickson v. Pardus, 551 U.S. 89, 94, (2007) (per curiam); Van Deelen v. 

Johnson, 497 F.3d 1151, 1153 n. 1 (10th Cir. 2007). On appeal he asserts, as best we 

can discern, that the district court erroneously: (1) failed to address whether the 

defendants are entitled to qualified immunity, (2) failed to address defendants’ contention 

that the prison’s mail policy is reasonably related to legitimate penological interests, and 

(3) concluded that he did not exhaust all of his administrative remedies. 
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 Our jurisdiction arises under 28 U.S.C. § 1291. We review de novo all aspects 

of the challenged district court decision. See Nielson v. Ketchum, 640 F.3d 1117, 

1121 (10th Cir. 2011) (“We review summary judgment decisions de novo, applying 

the same legal standard as the district court.” (internal quotation marks omitted)); 

Thomas v. Parker, 609 F.3d 1114, 1117 (10th Cir. 2010), cert. denied, 131 S. Ct. 

1691 (2011) (“We review de novo the district court’s finding of failure to exhaust 

administrative remedies.” (internal quotation marks omitted)). 

 As noted above, the district court dismissed all of Mr. Wilson’s claims because 

he failed to exhaust his administrative remedies before filing this lawsuit. Having 

reviewed the briefs, the record, and the applicable law pursuant to the 

above-mentioned standards, we hold that Mr. Wilson has not identified any reversible 

error in this case.2

 We therefore AFFIRM the judgment of the district court for 

substantially the same reasons stated in the magistrate judge’s thorough 

recommendation dated May 23, 2011, and adopted by the district court in its order 

dated February 27, 2012. But because the district court incorrectly dismissed the 

case with prejudice, we REMAND to the district court so that it may modify its 

dismissal to be without prejudice for failure to exhaust administrative remedies. 

 

2

 Contrary to Mr. Wilson’s position on appeal, the district court could not 

review the merits of whether defendants are entitled to qualified immunity, or 

whether the prison’s mail policy is reasonably related to legitimate penological 

interests. See Reedy v. Werholtz, 660 F.3d 1270, 1276 (10th Cir. 2011) (observing 

that PLRA’s exhaustion requirement bars this court from reviewing the merits of an 

inmate’s unexhausted claims). 
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 Additionally, we AFFIRM the district court’s denials of Mr. Wilson’s motions 

for appointment of counsel—to the extent he intends to appeal those decisions. See

Aplt. Opening Br. at 19. We DENY Mr. Wilson’s motion requesting oral argument. 

And, we GRANT his motion for leave to proceed on appeal without prepayment of 

costs or fees and remind him that he must make partial payments until the entire 

appellate filing fee is paid in full. 

 

 Entered for the Court 

 Jerome A. Holmes 

 Circuit Judge