*

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order and judgment is not binding precedent except under the doctrines of law of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

August 11, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EZEKIEL DAVIS,

Plaintiff-Appellant,

v.

JUSTIN JONES, RANDY

WORKMAN, CHIEF MEDICAL

OFFICER, CHO D.O.C., CHESTER

MASON, Medical Supervisor, DR.

ELLINGTON, BRUCE WHITE, UNK,

Medical Staff for D.O.C.,

Defendants-Appellees.

No. 10-7029

(D.C. No. 6:09-CV-00092-RAW-SPS)

(E.D. Okla.)

ORDER AND JUDGMENT*

Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.

Ezekiel Davis is an inmate held by the Oklahoma Department of

Corrections (“ODOC”). Mr. Davis brought this pro se action under 42 U.S.C.

§ 1983 against ODOC officials who, he alleges, deprived him of his Eighth

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Amendment rights by not providing adequate mental health treatment despite

making the notation “potentially intellectually challenged” in his record when he

was taken into ODOC custody. In due course, the district court dismissed Mr.

Davis’s complaint on the ground that he failed to exhaust administrative remedies

available to him before bringing suit. We review the district court’s decision de

novo, Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002), affording Mr.

Davis the generous construction of his pleadings and other papers to which pro se

litigants are entitled, Van Deelen v. Johnson, 497 F.3d 1151, 1153 n. 1 (10th Cir.

2007). In doing so, and after a careful review of the record, we affirm.

As the district court correctly noted, under the Prison Litigation Reform

Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(a), “[i]nmates are required to exhaust

available administrative remedies, and suits filed before the exhaustion

requirement is met must be dismissed.” D.Ct. Op. at 2; Yousef v. Reno, 254 F.3d

1214, 1216 n. 1 (10th Cir. 2001). In Oklahoma, a prisoner must comply with the

“Inmate/Offender Grievance Process” (“Grievance Process”) established by

ODOC in order to effectively exhaust his administrative remedies. R. at 99-116. 

In this case, Mr. Davis filed a grievance on December 8, 2008, but did not

exhaust the Grievance Process. Prison officials returned Mr. Davis’s grievance

with the instruction that it should be addressed to the Health Services office

because it concerned a medical issue. R. at 185. Mr. Davis did not comply with

this instruction, and neither did he attempt to appeal this procedural response to

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his grievance. See Grievance Process § VII.B, R. at 108. The Supreme Court has

held that to meet the PLRA’s exhaustion requirement, a prisoner must “use[ ] all

steps that the agency holds out” in “compliance with an agency’s deadlines and

other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 90 (2006)

(internal quotations omitted); see also Williams v. Franklin, 302 F. App’x 830,

831 (10th Cir. 2008) (unpublished). This Mr. Davis did not do, and so we are

obliged to conclude the district court was correct to dismiss his suit. The district

court granted Mr. Davis’s motion to proceed in forma pauperis; we pause to

remind him of his obligation to continue making partial payments until his

appellate filing fee is paid in full.

ENTERED FOR THE COURT

Neil M. Gorsuch

Circuit Judge

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