PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

BRIAN ESTRADA, 

 Plaintiff - Appellant, 

v. 

JACOB SMART, 

 Defendant - Appellee. 

No. 23-1189 

_________________________________ 

Appeal from the United States District Court 

for the District of Colorado 

(D.C. No. 1:20-CV-00549-WJM-STV)

_________________________________ 

Nicole L. Masiello (Robert Reeves Anderson, Arnold & Porter Kaye Scholer 

LLP, Denver, Colorado, and Andrew T. Tutt, Arnold & Porter Kaye Scholer 

LLP, Washington, DC, with her on the briefs), Arnold & Porter Kaye Scholer 

LLP, New York, New York, for Appellant. 

Abigail L. Smith, Senior Assistant Attorney General (Philip J. Weiser, 

Colorado Attorney General, with her on the brief), Colorado Department of 

Law, Denver, Colorado, for Appellee. 

_________________________________ 

Before McHUGH, MURPHY, and FEDERICO, Circuit Judges. 

_________________________________ 

FEDERICO, Circuit Judge. 

When Congress enacted the Prison Litigation Reform Act (“PLRA”) in 

1996, it declared that “[w]hat this country needs . . . is fewer and better 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 16, 2024

Christopher M. Wolpert 

Clerk of Court

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prisoner suits.” Jones v. Bock, 549 U.S. 199, 203 (2007). The PLRA elevated 

mandatory administrative exhaustion to its current height in 42 U.S.C. 

§ 1997e(a). Section 1997e(a) states: “No action shall be brought with 

respect to prison conditions under . . . Federal law, by a prisoner

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

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

§ 1997e(a) (emphasis added). 

Section 1997e(a) requires a prisoner to exhaust all available 

administrative remedies “prior to filing a lawsuit regarding prison 

conditions in federal court.” Little v. Jones, 607 F.3d 1245, 1249 (10th Cir. 

2010) (citing § 1997e(a)). Exhaustion under the PLRA is “mandatory” and 

“unexhausted claims cannot be brought in court.” Jones, 549 U.S. at 211 

(citing Porter v. Nussle, 534 U.S. 516, 524 (2002)). 

In May 2018, Plaintiff Brian Estrada was a prisoner confined in the 

custody of the Colorado Department of Corrections (“CDOC”). While 

attempting to escape a Colorado county courthouse, he was shot three times 

by Defendant Jacob Smart, a CDOC officer. Estrada later sued Smart under 

42 U.S.C. § 1983 and alleged excessive force, but the district court granted 

Smart’s summary judgment motion. It concluded that Estrada had failed to 

exhaust all available CDOC administrative remedies by not following 

CDOC’s three-step grievance process. 

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Final judgment was entered, and Estrada timely appealed, so we have 

jurisdiction under 28 U.S.C. § 1291. Estrada now argues that a county 

courthouse is not a CDOC prison, so his lawsuit is not “with respect to 

prison conditions” under the PLRA. He also claims the CDOC grievance 

procedures apply only to CDOC prisons, so his claim is outside the scope of 

when and where they apply. 

Having considered the record, briefing, and oral argument in full, we 

affirm the entry of summary judgment. In this PLRA case, geography is not 

the controlling factor. Instead, as the district court correctly determined, 

the PLRA and CDOC’s grievance procedures both applied to the shooting of 

a CDOC inmate by a CDOC officer. 

I 

In May 2018, Estrada was an inmate of CDOC. That month, CDOC 

transported him to the Logan County Courthouse in northeastern Colorado 

for a hearing in a pending criminal case. While in the jury box of a 

courtroom on the second floor, Estrada attempted to escape. His hands and 

ankles were shackled to his waist, so he could only shuffle across the floor. 

During Estrada’s shuffle across the courtroom, he was shot three times by 

Smart, a CDOC officer, who was posted in the courtroom and in charge of 

guarding Estrada. No other officer in the courtroom had reached for their 

gun. Estrada was unarmed. 

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Estrada survived being shot and returned to custody as a CDOC 

inmate. In 2020, while in CDOC custody, he sued Smart, in his personal 

capacity, in federal district court in Colorado. His complaint alleged a single 

claim for excessive force in violation of the Eighth Amendment under 

§ 1983. 

After Estrada filed his First Amended Complaint, Smart moved to 

dismiss under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) based on 

qualified immunity. The district court denied that motion, ruling that 

Smart “should have been on notice that use of deadly force on an unarmed 

prisoner restrained in the manner as was Plaintiff would violate Plaintiff’s 

Eighth Amendment right to be free of the use of excessive force[.]” Aplt. 

App’x at 79–80. 

The case then entered the discovery phase. Beyond Estrada’s 

deposition, it is unclear whether any other depositions occurred. The parties 

cite to no depositions in the record, nor do they mention written discovery. 

After discovery concluded, Smart filed a motion for summary 

judgment under Rule 56 based on his affirmative defense of failure to 

exhaust administrative remedies. Estrada was a CDOC inmate at the time 

of the shooting and when he filed suit, yet he did not pursue CDOC’s threestep grievance process regarding the courthouse shooting. 

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In support of the summary judgment motion, Smart introduced the 

following evidence: (1) a declaration from Anthony DeCesaro (the “DeCesaro 

Declaration”), a CDOC Step 3 Grievance Officer with personal knowledge 

about Estrada’s grievance filings and the scope of the CDOC’s grievance 

procedures; (2) CDOC Administrative Regulation (“AR”) 850-04; and (3) 

portions of Estrada’s deposition testimony. 

As described by Estrada in his Opening Brief, the DeCesaro 

Declaration “appended a complete copy of the operative administrative 

regulation governing grievances, and the regulation in effect at the time 

this suit was filed.” Aplt. Br. at 15 (citations omitted). The DeCesaro 

Declaration detailed CDOC’s “formalized three-step grievance process for 

inmates set forth in Administrative Regulation (‘AR’) 850-04.” Aplt. App’x 

at 116. 

At summary judgment, Estrada disputed only the scope of AR 850-04. 

He argued it did not apply to the courthouse shooting, as he pointed out 

that the Logan County Courthouse is not a CDOC facility. 

As to the scope of the administrative regulation, both sides focused on 

AR 850-04(IV)(D)(1), which states that the CDOC grievance procedures 

cover “a broad range of complaints including, but not limited to: policies, 

conditions, and incidents within the facility that affect the offender 

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personally; actions by employees and offenders and for resolving offender 

issues relating to health care concerns.” Id. at 123. 

Smart also showed that other language in AR 850-04 supported his 

interpretation. He pointed to AR 850-04(IV)(D)(2), which lists several 

exclusions for which CDOC’s grievance procedures do not apply; it states 

that “[t]his grievance procedure may not be used to seek review” of the 

excluded topics listed. Id. Yet incidents external to a CDOC facility, 

including a courthouse, are not part of this exclusions list. Id. 

DeCesaro next declared: “Inmates may also file grievances regarding 

incidents that occur outside of the facility while they are in the custody of 

the CDOC, such as during transport to court appearances or medical visits.” 

Aplt. App’x at 117 (citing AR 850-04(IV)(D)(1)-(2)). AR 850-04 supports this 

statement because it says the CDOC grievance procedures are available “to 

offenders sentenced to the [C]DOC. This includes [C]DOC offenders housed 

in private facilities and offenders who have been released to parole, 

community, or ISP supervision.” Aplt. App’x at 121 (AR 850-04(IV)(A)(2)); 

see also Aplt. App’x at 117 (DeCesaro Declaration, at ¶ 10) (citing AR 850-

04(IV)(A)(2)). 

 DeCesaro further established that Estrada had filed three grievances 

on unrelated topics in the year following the shooting, which ranged from 

May 1, 2018, to May 30, 2019. Thus, the CDOC grievance system was 

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“available” to Estrada, and he utilized it three times in the year following 

the courthouse shooting. But, as DeCesaro established, Estrada did not file 

a grievance for the courthouse shooting. 

By introducing the DeCesaro Declaration and attachments, Smart 

met his burden of proof on his affirmative defense. He established that 

Estrada failed to exhaust the available CDOC administrative remedies, 

while simultaneously filing three grievances on unrelated topics. 

At this point, the summary judgment burden shifted to Estrada, the 

nonmovant, to show that the CDOC regulations did not apply or were not 

available. To survive summary judgment, Estrada needed to offer evidence. 

But he provided only bare allegations and legal arguments made by his 

counsel about the scope of AR 850-04. And he did not make the definitional 

challenges to the PLRA that he now raises on appeal. Estrada failed to 

attach or cite any evidence or deposition testimony (for example, deposition 

testimony from DeCesaro or a Federal Rule 30(b)(6) deposition of CDOC); 

his response included as exhibits only an inmate orientation video and 

handbook from a CDOC facility. He failed to establish the factual or legal 

significance of either exhibit. Nor did he offer his own declaration or 

deposition testimony to describe what he received from CDOC regarding the 

grievance procedures, when he received it, where he received it, from whom 

he received it, or anything else. Indeed, in support of his argument before 

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the district court, Estrada effectively provided no summary judgment 

evidence. 

The district court granted the motion for summary judgment without 

holding an evidentiary hearing. It ruled that both the PLRA and CDOC’s 

three-step grievance procedures applied to the May 2018 courthouse 

shooting, and that Estrada failed to exhaust CDOC’s available 

administrative remedies. 

On appeal, Estrada argues the May 2018 courthouse shooting is 

beyond the scope of both the PLRA, generally, and the CDOC’s specific 

three-step grievance process. According to Estrada, a courthouse is not a 

prison, so his claim about the courthouse shooting is not “with respect to 

prison conditions,” as the scope of § 1997e(a) requires. 

II

“We review de novo the district court’s finding of failure to exhaust 

administrative remedies.” Little, 607 F.3d at 1249 (quoting Jernigan v. 

Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002)). 

“Failure to exhaust under the PLRA is an affirmative defense.” Tuckel 

v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011). When a defendant moves 

for summary judgment based on an affirmative defense, Rule 56 puts the 

burden on the defendant to “demonstrate that no disputed material fact 

exists regarding the affirmative defense asserted.” Hutchinson v. Pfeil, 105 

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F.3d 562, 564 (10th Cir. 1997). “If the defendant meets this initial burden, 

the plaintiff must then demonstrate with specificity the existence of a 

disputed material fact.” Id. “If the plaintiff fails to make such a showing, 

the affirmative defense bars his claim, and the defendant is then entitled to 

summary judgment as a matter of law.” Id. Applied to this case, “[o]nce” 

Smart “prove[d] that [Estrada] failed to exhaust,” then “the onus f[ell] on 

[Estrada] to show that remedies were unavailable to him[.]” Tuckel, 660 

F.3d at 1254. 

III 

First, we must decide whether the district court correctly decided the 

exhaustion question, without a hearing, and instead of sending that 

question to a jury. Estrada argues the district court usurped the role of a 

jury by resolving all disputed issues regarding administrative exhaustion 

at summary judgment. Arguing by analogy to a breach of contract claim 

decided under state law, Estrada claims that the district court violated Rule 

56 by resolving all disputes. But the CDOC grievance procedures are not a 

contract between two parties, nor are they interpreted based on state law. 

See Ruggiero v. Cnty. of Orange, 467 F.3d 170, 174 (2d Cir. 2006) (“There is 

no indication that Congress intended state law to govern [how we interpret 

the PLRA] . . . or that the PLRA’s exhaustion requirement should vary from 

state to state.”). 

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We affirm the district court’s decision to resolve all disputed issues on 

administrative exhaustion, including all disputed facts (if any existed). The 

district court correctly noted that our circuit “has not specifically instructed 

district courts as to how they should resolve factual disputes in the context 

of exhaustion.” Aplt. App’x at 199. We do so now and join “the Second, 

[Third,] Fifth, Seventh, Ninth, and Eleventh Circuits and hold that judges 

may resolve factual disputes relevant to the exhaustion issue without the 

participation of a jury.” Small v. Camden Cnty., 728 F.3d 265, 271 (3d Cir. 

2013) (collecting cases).1 

Prisoners “have a right to a jury trial on the merits, but this right does 

not guarantee resolution by a jury of all factual disputes.” Id. at 269. 

Ultimately, “[j]uries decide cases, not issues of judicial traffic control.” 

Pavey v. Conley, 544 F.3d 739, 741 (7th Cir. 2008). And “[u]ntil the issue of 

exhaustion is resolved, the court cannot know whether it is to decide the 

case or the prison authorities are to.” Id. 

More fundamentally, “exhaustion is a precondition for bringing suit” 

under the plain language of § 1997e(a). Small, 728 F.3d at 269. The PLRA 

states: “‘No action shall be brought with respect to prison conditions . . . 

1 This holding contains a caveat: The holding applies “as long as the 

facts are not bound up with the merits of the underlying dispute.” Id. at 

270. In this case, Estrada makes no argument that the merits are 

intertwined with administrative exhaustion. 

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until such administrative remedies as are available are exhausted.’” 42 

U.S.C. § 1997e(a) (emphasis added). The term “shall” is a direct command 

that we must follow. Smith v. Spizzirri, 144 S. Ct. 1173, 1177 (2024) 

(Congress’s “use of the word ‘shall’ ‘creates an obligation impervious to 

judicial discretion.’”) (quoting Lexecon Inc. v. Milberg Weiss Bershad Hynes 

& Lerach, 523 U.S. 26, 35 (1998)). Thus, to allow a § 1983 claim to reach a 

jury trial before determining the status of administrative exhaustion would 

violate the statute’s plain language. 

Estrada also claims the district court erred by failing to hold an 

evidentiary hearing. Ordinarily, if there are disputed issues of fact, a 

district court should hold an evidentiary hearing before granting summary 

judgment on the defense of failure to exhaust administrative remedies. In 

this case, however, Estrada offered “no evidence to support” his 

“allegation[s]” about the CDOC grievance procedures “beyond the 

allegation[s] [themselves].” May v. Segovia, 929 F.3d 1223, 1235 (10th Cir. 

2019). While Estrada attached a CDOC prison orientation video and inmate 

handbook to his summary judgment response, they stayed inert without 

testimony or a declaration to give them any force. The mere existence of a 

video and an inmate handbook tells us nothing about whether the CDOC 

grievance procedures were available for Estrada to complain about the 

courthouse shooting. 

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To avoid summary judgment, a nonmovant must offer evidence, not 

bare allegations. See Fed. R. Civ. P. 56(c)(1)(A) (setting forth how a party 

introduces summary judgment evidence, including depositions and 

declarations, to support a factual assertion). Applied here, that standard 

means once Smart introduced evidence showing that Estrada had filed 

three other grievances but none about the May 2018 shooting, the burden 

shifted to Estrada to “do more than refer to allegations of counsel contained 

in a brief to withstand summary judgment.” Adams v. Am. Guar. and Liab. 

Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (quoting Thomas v. Wichita 

Coca–Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992)). “Rather, 

sufficient evidence (pertinent to the material issue) must be identified by 

reference to an affidavit [or declaration],2 a deposition transcript or a 

specific exhibit incorporated therein.” Id. (quoting Thomas, 968 F.2d at 

1024); accord Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1112 (10th 

Cir. 2007) (emphasizing that “bald allegations cannot preclude summary 

judgment” in a PLRA exhaustion case). 

In sum, in a prisoner case involving the defense of failure to exhaust, 

a district court should, before trial, resolve all disputed issues of law and 

fact that are not intertwined with the merits of the claim. If the plaintiff 

2 28 U.S.C. § 1746 (making affidavits and declarations effectively 

synonymous). 

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establishes a disputed issue of material fact, an evidentiary hearing should 

usually be held. If the district court declines to conduct a hearing, it should 

explain why one is unnecessary. But if neither party requests an 

evidentiary hearing, a district court is not obligated to raise the topic sua 

sponte. Here, the district court correctly followed this procedure. 

IV 

We now turn to whether Estrada forfeited his challenge to the scope 

of the PLRA. Estrada argues that the PLRA does not apply to a courthouse 

shooting – or any location outside the prison walls. This argument is new 

because Estrada did not make it before the district court when he opposed 

Smart’s motion for summary judgment. Rather, he focused his argument on 

the scope of the CDOC regulation. See Aplt. App’x at 200. 

However, we will consider this argument on appeal because the 

district court thoroughly analyzed the scope of the PLRA in its order 

granting summary judgment. We set aside our general rules on forfeiture 

and waiver when an issue has been “passed upon,” meaning “the district 

court explicitly [has] consider[ed] and resolve[d] an issue of law on the 

merits.” Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 991–92 (10th Cir. 

2019) (quoting United States v. Verner, 659 F. App’x 461, 466 (10th Cir. 

2016)); United States v. Hernandez-Rodriguez, 352 F.3d 1325, 1328 (10th 

Cir. 2003) (“We conclude that when the district court sua sponte raises and 

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explicitly resolves an issue of law on the merits, the appellant may 

challenge that ruling on appeal on the ground addressed by the district 

court even if he failed to raise the issue in district court. In such a case, 

review on appeal is not for ‘plain error,’ but is subject to the same standard 

of appellate review that would be applicable if the appellant had properly 

raised the issue.”). The district court extensively considered the scope of the 

PLRA, along with the CDOC grievance procedure, when it granted 

summary judgment in favor of Smart. Because it “passed upon” the question 

of the scope of the PLRA, we therefore reach Estrada’s PLRA challenge 

raised on appeal. 

V 

Next, we must examine the scope of the PLRA. That is, whether and 

how it applies to Estrada’s § 1983 claim for excessive use of force based upon 

a courthouse shooting. 

A 

Regarding the applicability of the PLRA, Estrada’s appellate briefing 

centers around a geography-based test. Under his proposed test, the PLRA’s 

exhaustion requirement applies only to a claim for relief “related to the 

conditions of . . . confinement in prison.” Aplt. Br. at 11. In turn, he contends 

that because a courthouse is not a prison, the PLRA does not apply to the 

May 2018 courthouse shooting. 

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In evaluating Estrada’s geography-based test, we start with the text 

of § 1997e(a). Wichita Ctr. for Graduate Med. Educ., Inc. v. United States, 

917 F.3d 1221, 1224 (10th Cir. 2019) (“As always, we start with the plain 

meaning of the text.”). Congress did not define the terms in § 1997e(a). But 

a related provision of the PLRA, 18 U.S.C. § 3626(g)(2), defines a “civil 

action with respect to prison conditions” broadly as “any civil proceeding . . 

. with respect to the conditions of confinement or the effects of actions 

by government officials on the lives of persons confined in prison[.]”3

(emphasis added). The district court cited this definition when it concluded 

that the PLRA applied to a courthouse shooting, and it explained that we 

have cited § 3626(g)(2) in support of applying the PLRA to a prisoner case 

regarding activity outside a prison. Aplt. App’x at 201 (discussing 

Dmytryszyn v. Hickox, 172 F.3d 62, *1 (10th Cir. 1999) (unpublished)). 

We agree with the district court’s use of the § 3626(g)(2) definition to 

interpret “prison conditions” in § 1997e(a). Our court has cited § 3626(g)(2) in 

a case concluding that § 1997e(a) reaches a prisoner “challenging the amount 

3 “The PLRA is codified in scattered sections of Titles 11, 18, 28, and 

42 of the United States Code[.]” Green v. Young, 454 F.3d 405, 409 n.1 (4th 

Cir. 2006). The PLRA’s exhaustion requirement, § 1997e(a), is in Title 42 of 

the U.S. Code, while § 3626(g)(2) is in Title 18. Both sections were enacted 

at the same time in the same law: the Omnibus Consolidated Recissions and 

Appropriations Act of 1996, PL 104–134, April 26, 1996, 110 Stat. 1321. 

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of compensation he received for work performed outside the prison.” 

Dmytryszyn, 172 F.3d at *1. In another case, we applied § 1997e(a) to “an 

assault at [a] county courthouse” where the plaintiff was in custody, Forbes v. 

Garcia, 696 F. App’x 381, 382 (10th Cir. 2017) (unpublished) – a nearly 

identical fact pattern to this case. Thus, although unpublished, we have in two 

prior cases considered these two statutory provisions together to reject the 

strict geographic test proposed by Estrada. 

Estrada counters that the Supreme Court has cast doubt on importing 

the language in § 3626(g)(2) to define the scope of § 1997e(a). We do not 

sense this same doubt. Rather, the Supreme Court “express[ed] no 

definitive opinion on the proper reading of § 3626(g)(2)” as applied to 

§ 1997e(a). Porter, 534 U.S. at 525 n.3. 

Our marrying together of § 3626(g)(2) with § 1997e(a) aligns with 

three other Circuits, who have held it is proper to import the § 3626(g)(2) 

definition to the § 1997e(a) exhaustion requirement. We agree with them 

that both statutes “are part of the same legislation with the same 

overarching objectives,” and “it makes good sense to assume that a 

definition provided by Congress in one statute applies to another related 

statute.” Smith v. Zachary, 255 F.3d 446, 449 (7th Cir. 2001); see also

Ruggerio, 467 F.3d at 175 (same); Witzke v. Femal, 376 F.3d 744, 752–53 

(7th Cir. 2004) (same); Alexander S. v. Boyd, 113 F.3d 1373, 1381 (4th Cir. 

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1997), abrogated on other grounds by Martin v. Hadix, 527 U.S. 343 (1999) 

(same). 

Estrada repeatedly cites the Seventh Circuit’s decision in Witzke to 

argue that the phrase “prison conditions” includes only the area inside a 

prison. Aplt. Br. at 22—24. We agree that Witzke is persuasive, but it does 

not help Estrada in this appeal. 

In Witzke, a prisoner alleged that his claim was not “with respect to 

prison conditions” under § 1997e(a) because it involved “his treatment as a 

probationer participating in rehabilitation programs” and in a halfway 

house. 376 F.3d at 749–50; see id. at 750 (“Mr. Witzke contends that he is 

not complaining of prison conditions. Rather, he maintains that the alleged 

events took place while he was a probationer participating in probationary 

programs; therefore, he continues, he is not complaining about prison 

conditions but about his treatment while he was a probationer. Such 

allegations are, in his view, pre-incarceration claims.”). The Seventh Circuit 

rejected the prisoner’s arguments on scope. It first relied on the broad 

definition in § 3626(g)(2) and then observed that the term “prison” is also 

broadly defined in the PLRA as “any Federal, State, or local facility that 

incarcerates or detains juveniles or adults accused of, convicted of, 

sentenced for, or adjudicated delinquent for, violations of criminal law.” Id.

at 752 (quoting 18 U.S.C. § 3626(g)(5)); see also Jackson v. Johnson, 475 

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F.3d 261, 266 (5th Cir. 2007) (favorably discussing Witzke). Like the court 

in Witzke, we conclude the § 3626(g)(2) definition applies to the PLRA and 

aids in our decision to reject Estrada’s strict geography test. 

B 

For Estrada, on the day of the May 2018 courthouse shooting, the 

Logan County courthouse functioned as a “prison.” It was a “local facility” 

that “detains” inmates, like Estrada, “accused” or “convicted” of “violations 

of criminal law[.]” 18 U.S.C. § 3626(g)(5). Estrada was a prisoner in CDOC 

custody at the time he was shot; he was fully restrained, shackled, and 

under the control of armed CDOC officers inside the courthouse. He was 

only at the courthouse temporarily and only for a hearing in another 

Colorado state criminal case. Likewise, he was transported there (and also 

shot) by a CDOC officer. And, finally, but-for the shooting, he would have 

been transported back to the Logan County jail from the courthouse in 

CDOC custody. 

It is important to our holding that every case fact fits under CDOC’s 

umbrella. When the shooting happened, Estrada was in CDOC custody and 

Smart was acting as a CDOC officer. This posture distinguishes this case 

from the Second Circuit case Estrada relies on, Hubbs v. Suffolk Cnty. 

Sheriff’s Dep’t, 788 F.3d 54 (2d Cir. 2015). 

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In Hubbs, the plaintiff sued the sheriff’s deputies under § 1983 for 

beating him in a holding cell inside a courthouse. Id. at 57. The Second 

Circuit reversed summary judgment, but not because of the geographic 

location of the courthouse. Rather, the sheriff’s deputies (defendants) did 

not adduce sufficient evidence to establish the exhaustion affirmative 

defense at the summary judgment stage. Id. at 56–57. The available 

grievance procedure in that case stated it did not apply to issues and events 

outside of the warden’s control, and the defendants’ summary judgment 

filings failed to establish that the deputies fell within the warden’s chain of 

command. Id. at 59–61. As a result, the Second Circuit determined, on the 

limited record before it, “no administrative remedies were available to 

[plaintiff], and there was thus nothing for him to exhaust.” Id. at 61. Here, 

in contrast, Estrada was a CDOC inmate and Smart was a CDOC officer. 

As a result, CDOC’s grievance procedures applied. 

Again, whether the PLRA applies is not dependent strictly and solely 

upon geography but on whether a prisoner is confined in any jail, prison, or 

other correctional facility. Congress used the term “any” in § 1997e(a). “The 

term ‘any’ ensures that the definition has a wide reach[.]” United States v. 

Hutchinson, 573 F.3d 1011, 1022 (10th Cir. 2009) (quoting Boyle v. United 

States, 556 U.S. 938, 944 (2009)); see also Nelson v. United States, 40 F.4th 

1105, 1115 (10th Cir. 2022) (holding that “the word ‘any’ has an expansive 

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meaning, that is, ‘one or some indiscriminately of whatever kind’”) (quoting 

United States v. Gonzales, 520 U.S. 1, 5 (1997)). Here, the word “any” 

expands a list of three nouns already listed disjunctively, i.e., “any jail, 

prison, or other correctional facility[.]” § 1997e(a). “Equally broad is the 

phrase ‘with respect to.’” Pharm. Care Mgmt. Ass’n v. Mulready, 78 F.4th 

1183, 1205 (10th Cir. 2023). The phrase “with respect to prison conditions” 

is therefore “unmistakably broad[.]” Id. 

“Time and again,” the Supreme Court has “refus[ed] to add unwritten 

limits onto [the PLRA’s] rigorous textual requirements” and “reject[ed] 

every attempt to” narrow the PLRA. Ross v. Blake, 578 U.S. 632, 639 (2016). 

In fact, “§ 1997e(a) mandates initial recourse to the prison grievance process 

even when a prisoner seeks . . . a remedy not available in that process[.]” 

Porter, 534 U.S. at 525 n.4 (describing the holding in Booth v. Churner, 532 

U.S. 731, 741 (2001)). 

We are bound to adhere to this clear guidance. No federal Circuit has 

adopted Estrada’s narrow reading of the PLRA; instead, our sister Circuits 

have all determined the scope of the PLRA is broadly construed, as we do 

again in this case. See, e.g., Ruggiero, 467 F.3d at 174 (joining “[t]wo other 

courts of appeals” in reading the phrase “any jail, prison, or other 

correctional facility” within § 1997e “expansively”) (first citing Witzke, 376 

F.3d at 744; and then citing Alexander S. v. Boyd, 113 F.3d 1373 (4th Cir. 

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1997), abrogated on other grounds by Martin v. Hadix, 527 U.S. 343 (1999)); 

id. at 175 (“By referring to ‘prisoners,’ Congress placed a constraint on suits 

filed by all litigants who could be characterized as prisoners, regardless of 

the type of facility in which they are imprisoned.”). 

In Porter, the Supreme Court addressed the phrase “prison 

conditions” in § 1997e(a) and determined that it “applies to all inmate suits 

about prison life, whether they involve general circumstances or particular 

episodes, and whether they allege excessive force or some other wrong.” 534 

U.S. at 532. Porter did not provide a geographical dimension to this holding 

and did not cabin its reach. Rather, Porter held: “We here read the term 

‘prison conditions’ not in isolation, but ‘in its proper context.’ The PLRA 

exhaustion provision is captioned ‘Suits by prisoners’; this unqualified 

heading scarcely aids the argument that Congress meant to bi-sect the 

universe of prisoner suits.” Id. at 527–28 (citations omitted). 

Estrada’s appeal also runs contrary to another holding in Porter. In 

his Reply Brief, he claims that “construing the text to impose a temporal 

limit (rather than a geographical limit) does not withstand scrutiny.” Reply 

Br. at 10. But Porter held that it is “plausible that Congress inserted ‘prison 

conditions’ into the exhaustion provision simply to make it clear that 

preincarceration claims fall outside § 1997e(a), for example, a § 1983 claim 

against the prisoner’s arresting officer.” 534 U.S. at 518. Although the 

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temporal test may limit the statute’s reach, nothing indicates that Congress 

intended courts to add a geographic limitation. 

C 

Another reason we determine the PLRA’s scope broadly is because 

narrowing it to only apply within the prison walls would subvert a major 

purpose of the PLRA: to improve the overall conditions of confinement by 

drawing immediate attention to prisoner treatment issues as they occur. 

Rapid reporting allows corrections officers and officials to address problems 

quickly, not months or years later following the outcome of a lawsuit. 

For example, in this case, if Estrada had timely pursued the threestep grievance process regarding the courthouse shooting, he would have 

alerted prison officials that CDOC officers perhaps need additional training 

on the appropriate tactics and means to prevent prisoners in custody from 

escaping a courthouse. Or, at the very least, his grievances would have 

drawn CDOC’s attention to Smart, who shot a fully restrained prisoner 

three times without any attempt to use a taser or other lesser force. 

Estrada’s unwarranted shooting “by a corrections officer may be reflective 

of a systemic problem traceable to poor hiring practices, inadequate 

training, or insufficient supervision.” Id. at 530; see also Ruggerio, 467 F.3d 

at 178 (explaining the importance of the “larger interests at stake under the 

PLRA” beyond the prisoner’s federal lawsuit). 

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Carving out a wide exception for all incidents that happen anywhere 

beyond the boundary of a prison would unravel the PLRA’s blanket 

coverage. As oral argument in this case demonstrated, these gaps in 

coverage would cover far more than courthouse shootings. When pressed, 

Estrada’s counsel could not defend an objective test based on geography 

(and, in fact, disclaimed proposing a geographic test for the PLRA, at one 

point) or refute that if we adopted Estrada’s interpretation of the PLRA, all 

transportation of all prisoners to or from prisons would be deemed outside 

the zone of the PLRA. Such gaps would be significant; prisoners routinely 

are transported from prison to other correctional facilities, medical 

appointments, or courthouses. 

Estrada’s geography-based test is also contrary to the history and 

statutory context of the PLRA. See Ross, 578 U.S. at 640 (“So too, the history 

of the PLRA underscores the mandatory nature of its exhaustion regime.”). 

Congress passed the PLRA for a variety of reasons, including to “reduce the 

‘disruptive tide of frivolous prisoner litigation.’” Tuckel, 660 F.3d at 1252 

(quoting Woodford v. Ngo, 548 U.S. 81, 97 (2006)). The goal was “fewer and 

better prisoner suits.” Jones, 549 U.S. at 203. Congress also sought “to 

eliminate unwarranted federal-court interference with the administration 

of prisons,” Woodford, 548 U.S. at 93, and “to . . . afford[ ] corrections 

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officials time and opportunity to address complaints internally before 

allowing the initiation of a federal case.” Porter, 534 U.S. at 525. 

Requiring a prisoner to file a grievance is not a technicality; instead, 

it is mandatory to ensure prison “efficiency” and “administrative agency 

authority” by allowing prison officials to promptly review incidents and 

gather evidence, as well as maintain control over the flow of prison life. 

Woodford, 548 U.S. at 89 (quoting McCarthy v. Madigan, 503 U.S. 140, 145 

(1992)). Administrative exhaustion alerts prison officials to problems as 

they occur, avoiding delays and the loss or destruction of evidence. 

Exhaustion also gives an agency the “‘opportunity to correct its own 

mistakes with respect to the programs it administers before it is haled into 

federal court,’ and it discourages ‘disregard of [the agency’s] procedures.’” 

Id. (quoting McCarthy, 503 U.S. at 145). 

As a result, if a prisoner later files a federal lawsuit, the parties and 

the court will have a developed factual record. See id. at 95 (explaining that 

“proper exhaustion often results in the creation of an administrative record 

that is helpful to the court [because] [w]hen a grievance is filed shortly after 

the event giving rise to the grievance, witnesses can be identified and 

questioned while memories are still fresh, and evidence can be gathered and 

preserved”). From a prisoner’s perspective, administrative exhaustion plays 

a critical role in gathering and preserving critical evidence. 

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We also must consider the statutory evolution of administrative 

exhaustion. The PLRA “differs markedly from its predecessor.” Porter, 534 

U.S. at 524. In passing the PLRA, Congress “invigorated” the exhaustion 

requirement. Woodford, 548 U.S. at 84 (quoting Porter, 534 U.S. at 524). 

Prior to 1980, prisoners faced “no obligation to exhaust administrative 

remedies.” Id. Congress then initially “enacted a weak exhaustion 

provision” that was “in large part discretionary” and “authorized district 

courts to stay actions . . . for a limited time while a prisoner exhausted ‘such 

plain, speedy, and effective administrative remedies as are available.’” Id.

(quoting § 1997e(a)(1) (1994 ed.)). 

“[T]he new § 1997e(a) removed the conditions that administrative 

remedies be ‘plain, speedy, and effective’ and that they satisfy minimum 

standards.” Ross, 578 U.S. at 641 (quoting Porter, 534 U.S. at 524). We must 

acknowledge that “[w]hen Congress amends legislation, courts must 

‘presume it intends [the change] to have real and substantial effect.’” Id. at 

641–42 (quoting Stone v. INS, 514 U.S. 386, 397 (1995)). Thus, because 

Congress’ intent in passing the PLRA was to broaden and strengthen 

administrative exhaustion, we decline to exclude the courthouse shooting 

from the reach of the PLRA. 

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For all these reasons, we hold that the PLRA’s exhaustion 

requirement applies to the May 2018 courthouse shooting of a CDOC inmate 

by a CDOC officer. 

VI 

We now turn to the scope of the CDOC grievance procedures. 

Ultimately, we must decide whether AR 850-04 applies to a courthouse 

shooting, because “it is the prison’s requirements, and not the PLRA, that 

define the boundaries of proper exhaustion.” Jones, 549 U.S. at 218. 

The district court ruled that to plead a federal lawsuit based on the 

courthouse shooting, Estrada was first required to file Steps 1, 2, and 3 

grievances about the shooting, as set forth in CDOC’s AR 850-04. In this 

case, like in Jones, which analyzed administrative exhaustion within the 

Michigan Department of Corrections, AR 850-04 “describes what issues are 

grievable[.]” Jones, 549 U.S. at 206–07. Thus, AR 850-04 defines the scope 

of the CDOC grievance procedures. 

Here is the language in AR 850-04 that determines whether the threestep grievance procedures applied to Estrada’s courthouse shooting: 

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Aplt. App’x at 123 (highlight added). 

In analyzing this language, the district court provided four reasons 

why the courthouse shooting is within the scope of AR 850-04. The first 

three reasons are based on the highlighted language above, and the fourth 

is based on nearby language in AR 850-04: 

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1. Including But Not Limited To. First, “AR 850-04 explicitly states that 

the grievance procedure includes issues that occur within the facility, 

but is not limited to them.” 

2. Employees’ Actions. Second, “the phrase ‘actions by employees and 

offenders’ is not placed within the previous portion of the paragraph 

which describes incidents within the facility, indicating that employees’ 

actions need not necessarily occur within the facility to be covered by AR 

850-04.” 

3. Not Listed as an Exclusion. Third, the list of exclusions included in 

AR 850-04 “notably does not include incidents occurring outside the 

prison, quite clearly implying that the procedure is available for such 

incidents.” 

4. Covers Offenders Outside the Facility. Fourth, “[Smart] points out 

that CDOC policy does mention covering incidents outside the facility in 

the context of who the grievance procedure is made available to in AR 

850-04(IV)(A)(2). To wit, the AR provides that ‘[t]he grievance procedure 

is available only to offenders sentenced to the [C]DOC. This includes 

[C]DOC offenders housed in private facilities and offenders who have 

been released to parole, community, or ISP supervision.’” (citation 

omitted). 

Aplt. App’x at 197, 204. 

We conclude that the district court’s analysis of the scope of the CDOC 

regulations is reasonable. The fourth point, on its own, disproves Estrada’s 

repeated assertion that nothing suggests the CDOC procedures apply 

outside the prison walls. 

The Supreme Court has advised that “[w]hen an administrative 

process is susceptible of multiple reasonable interpretations, Congress has 

determined that the inmate should err on the side of exhaustion.” Ross, 578 

U.S. at 644. In Ross, the Supreme Court expressly held that “new § 1997e(a) 

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removed the conditions that administrative remedies be ‘plain, speedy, and 

effective’ and that they satisfy minimum standards.” Id. at 641 (quoting 

Porter, 534 U.S. at 524). As a result, a prisoner is not excused from the duty 

to exhaust all administrative remedies by pointing to a “reasonable mistake 

about the meaning of a prison’s grievance procedures.” Id.; see also Porter, 

534 U.S. at 525 n.4 (“[T]he PLRA establishes a different regime. For 

litigation within § 1997e(a)’s compass, Congress has replaced the ‘general 

rule of non-exhaustion’ with a general rule of exhaustion.”). 

Applied to this case, the Supreme Court’s dual guidance in Ross and 

Porter is dispositive. The district court’s inquiry was not to choose who, as 

between Estrada and Smart, offered a better interpretation of AR 850-04. 

Instead, under controlling Supreme Court law, Estrada was required to 

show that it would be unreasonable to apply CDOC’s three-step grievance 

procedures to the courthouse shooting. Ross, 578 U.S. at 641, 644. This is a 

more difficult showing, and Estrada failed to make it. The district court 

pointed to four reasons why it is reasonable to apply AR 850-04 to the 

courthouse shooting, and we affirm this “reasonable interpretation of the 

grievance requirements.” Thomas v. Parker, 609 F.3d 1114, 1118 (10th Cir. 

2010). 

Ultimately, we affirm the district court’s entry of summary judgment. 

We agree that, because Estrada failed to exhaust his § 1983 claim regarding 

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the courthouse shooting by following CDOC’s three-step grievance process, 

his claim was barred. 

VII 

Estrada makes a final argument that we decline to reach. Trying to 

expand what he argued in response to the summary judgment motion, 

Estrada argues on appeal that his claim was not subject to the PLRA based 

on an exception. He did not make this argument below. We acknowledge a 

“built-in exception to the exhaustion requirement: A prisoner need not 

exhaust remedies if they are not ‘available.’” Ross, 578 U.S. at 635–36. This 

“unavailability” of administrative remedies exception can take three forms: 

1. Dead end: if the administrative process “operates as a simple 

dead end—with officers unable or consistently unwilling to provide 

any relief to aggrieved inmates”; 

2. Opaqueness: if it is so “opaque that it becomes, practically 

speaking, incapable of use”; and 

3. Threats or Intimidation: if prison administrators “thwart 

inmates from taking advantage of a grievance process through 

machination, misrepresentation, or intimidation.” 

Id. at 643–44; see also May, 929 F.3d at 1234 (same).

Estrada claims on appeal that the opaqueness exception applies here, 

because no prisoner, including him, could determine that AR 850-04 applied 

to a courthouse shooting. But this new argument was never presented to 

the district court, and we decline to reach it. As we have repeatedly held, 

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we “deem arguments that litigants fail to present before the district court 

but then subsequently urge on appeal to be forfeited.” Havens v. Colo. Dep’t 

of Corr., 897 F.3d 1250, 1259 (10th Cir. 2018). The district court specifically 

noted that it did not analyze opaqueness because Estrada did not argue it. 

Aplt. App’x at 208. 

In addition, failure to argue plain error on appeal waives the issue. 

United States v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019) (“When an 

appellant fails to preserve an issue and also fails to make a plain-error 

argument on appeal, we ordinarily deem the issue waived (rather than 

merely forfeited) and decline to review the issue at all—for plain error or 

otherwise.”). In this case, Estrada argued plain error on appeal, but he 

waited until the reply brief, affording Smart no opportunity to respond. We 

“need not decide whether” raising plain error for the first time in a reply 

“avoids waiver because [Estrada’s] argument is insufficient.” Hayes v. 

SkyWest Airlines, Inc., 12 F.4th 1186, 1201 (10th Cir. 2021). Estrada fails 

to show it is “clear or obvious that the district court should have” applied 

the opaqueness exception when he “did not present” this argument – or any 

probative evidence supporting it – at summary judgment. Id. 

VIII 

 The district court’s entry of summary judgment against Estrada is 

AFFIRMED. 

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