UNITED STATES CO URT 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 th e Colorado Department of Corrections’ Arrowhead Correctional Center (Arrowhead), appeals the di strict court’s grant of summary judgment in favor of three Arrowhead official s, on his claims brought pursuant to 42 U.S.C. § 1983. Specifically, he alleges that defendants violated his constitutional rights by refusing to accept lega l mail sent to him at Arrowhead, and

* After examining the briefs and appellate record, this pane l has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve 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- 2 - by not informing him that they had rejected the mail. He also alleges that defendants violated his constitutional rights by refusi ng to provide him with the addresses of attorneys who sought to contac t him at Arrowh ead by mail. Defendants moved for summary judgmen t arguing, in pertinent part, that Mr. Wilson had failed to exhaust available ad ministrative remedies before filing this lawsuit, as required by the Prison L itigation 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 offend er 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 asser tion that he and other inmates do not have “any way to make copies of their grievance fo rms,” 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. Co lo. 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 re medies as are available ar e exhausted.” 42 U.S.C. § 1997e(a). The PLRA requi res “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 pris oner 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).- 3 - avail himself of an administrative remedy, they render that remedy unavailable and a court will excuse the prisoner’s failure to ex haust.” (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 74254 72, at *7. Accordingly, she recommended granting summary judgment in defendants’ fa vor 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 ma gistrate judge’s recommendation, granted summary judgment, and dismissed the case for failure to exhaust administrative remedies. Its dismissal, ho wever, 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 fi lings 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 errone ously: (1) failed to address whether the defendants are entitled to qua lified immunity, (2) failed to address defendants’ contention that the prison’s mail policy is reasonably rela ted to legitimate penological interests, and (3) concluded that he did not exhaust all of his administrative remedies.- 4 - Our jurisdiction arises under 28 U.S.C. § 1291. We review de novo all aspects of the challenged distri ct court decision. See Nielson v. Ketchum , 640 F.3d 1117, 1121 (10th Cir. 2011) (“We review summ ary judgment decisions de novo, applying the same legal standard as the district court.” (interna l 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 distri ct court’s finding of failure to exhaust administrative remedies.” (inter nal quotation marks omitted)). As noted above, the district court dism issed all of Mr. Wilson’s claims because he failed to exhaust his administrative reme dies before filing th is lawsuit. Having reviewed the briefs, the record, and the applicable la w 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 judgm ent 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 dist rict court in its order dated February 27, 2012. But because the district court incorr ectly 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 administ rative remedies.

2 Contrary to Mr. Wilson’s position on appeal, the district court could not review the merits of whet her defendants are entitled to qualified immunity, or whether the prison’s mail policy is reas onably related to legitimate penological interests. See Reedy v. Werholtz , 660 F.3d 1270, 1276 ( 10th Cir. 2011) (observing that PLRA’s exhaustion require ment bars this court from re viewing the merits of an inmate’s unexhausted claims).- 5 - Additionally, we AFFIRM the district court’s denials of Mr. Wilson’s motions for appointment of counsel—t o the extent he intends to appeal those decisions. See Aplt. Opening Br. at 19. We DENY Mr. W ilson’s motion requesti ng oral argument. And, we GRANT his motion for leave to pr oceed on appeal without prepayment of costs or fees and remind him that he mu st make partial paym ents until the entire appellate filing fee is paid in full.

Entered for the Court

Jerome A. Holmes Circuit Judge