UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

MYCHEL PUSHA, 

 Plaintiff-Appellant, 

v. 

LT. MYERS, Correctional 

Officer/Lieutenant, Lansing Correctional 

Facility; REX PRYOR, Warden, Lansing 

Correctional Facility, 

 Defendants-Appellees. 

No. 14-3083 

(D.C. No. 5:14-CV-03010-SAC) 

(D. Kan.)

 

ORDER AND JUDGMENT*

 

Before GORSUCH, O’BRIEN, and PHILLIPS, Circuit Judges. 

 

 Mychel Pusha, a state prisoner, filed a pro se 42 U.S.C. § 1983 action against 

Kansas prison officials from the Lansing Correctional Facility, alleging racial 

discrimination. As required by 28 U.S.C. § 1915(A) the district judge screened the 

complaint. He gave Pusha notice of the deficiencies in his complaint, including his 

 

* 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 

April 24, 2015

Elisabeth A. Shumaker 

Clerk of Court

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failure to exhaust his administrative remedies, and afforded him time to take curative 

action. When Pusha failed to do so the judge dismissed the complaint without 

prejudice for failure to exhaust. He appeals to this court for relief from the dismissal, 

but it was proper. We affirm.1

 Pusha filed his pro se complaint on January 13, 2014. According to its 

allegations, he submitted a grievance on December 12, 2013, but the prison warden 

had failed to take any action. On January 14, 2014, the district judge required Pusha 

to show cause why his complaint should not be dismissed based on his failure to 

exhaust administrative remedies as required by 42 U.S.C. § 1997e(a), which 

provides: 

No action shall be brought with respect to prison conditions 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 exhausted. 

The judge cited Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007) 

(permitting district court to dismiss a prisoner complaint sua sponte for failure to 

state a claim if it is clear from the face of the complaint the prisoner has not 

exhausted his administrative remedies). The order also described the administrative 

grievance procedure available to Kansas prisoners, which includes submission of the 

grievance first to a unit team member, then to the warden, and finally to the Secretary 

of Corrections. See Kan. Admin. Regs. § 44-15-101(d)(1)-(3). 

 

1

 Our jurisdiction derives from 28 U.S.C. § 1291. 

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 Pusha initially responded to the show-cause order with a letter dated January 

19, 2014, to which he attached a copy of the prison warden’s December 27, 2013, 

response to his grievance. As the warden’s letter explained, Pusha’s grievance had 

been received and investigated, and “[n]o further action [was] deemed necessary.” 

R., Vol. 1 at 25. Pusha told the judge, “As you have received this letter, I have also 

written the Secretary of Corrections, and sent all of the pertaining information, of the 

grievance.” Id. at 23. On February 5, Pusha sent an additional letter to the court, 

attaching a letter from the Secretary of Corrections dated January 24, 2014. It said 

his grievance form “reflects no evidence that you filed your grievance with the 

[warden] before pursuing an appeal with the Secretary.” Id. at 33. It also advised 

Pusha that his grievance would be forwarded to the warden, per Kan. Admin. Regs. 

§ 44-15-102(c)(4), which states the procedure to be followed when a grievance is 

submitted to the Secretary without prior action by the warden. 

 The district court dismissed Pusha’s § 1983 complaint without prejudice, 

concluding his filings failed to show he properly exhausted his administrative 

remedies before commencing this action. Pusha appeals from the dismissal, 

contending his submissions establish commencement and completion of the 

applicable grievance process before his complaint was filed with the district court. 

Contrary to his arguments and as we explain, dismissal of his complaint without 

prejudice was entirely proper under the process outlined in Aquilar-Avellaveda, 

478 F.3d at 1225-26. 

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

administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 

2002). Failure to exhaust under § 1997e(a) is an affirmative defense, and prisoners 

are not required to plead exhaustion in their complaints. Aquilar-Avellaveda, 

478 F.3d at 1225. But if a complaint makes “affirmative but not conclusive 

statements” regarding the prisoner’s exhaustion of administrative remedies, a district 

court may raise the exhaustion issue sua sponte and seek additional information from 

the prisoner. Id. (stating “a district court cannot dismiss the complaint without first 

giving the inmate an opportunity to address the issue” (internal quotation marks 

omitted)). The district court appropriately followed that procedure in this case. 

“[P]roper exhaustion of administrative remedies . . . means using all steps that 

the agency holds out, and doing so properly (so that the agency addresses the issues 

on the merits).” Woodford v. Ngo, 548 U.S. 81, 90 (2006) (internal quotation marks 

omitted). Moreover, an inmate must complete the grievance process before filing his 

complaint. See 42 U.S.C. § 1997e(a) (stating “[n]o action shall be brought . . . until 

such administrative remedies as are available are exhausted”); see also Jernigan, 

304 F.3d at 1032 (“An inmate who begins the grievance process but does not 

complete it is barred from pursuing a § 1983 claim under [§ 1997e(a)] for failure to 

exhaust his administrative remedies.”). 

The grievance process applicable to Kansas prisoners includes an appeal to the 

Secretary of Corrections. Kan. Admin. Regs. § 44-15-102(c)(1). Importantly, it 

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gives the Secretary “20 working days . . . to return the grievance report form to the 

inmate with an answer. The answer shall include findings of fact, conclusions made, 

and actions taken.” Id. § 44-15-102(c)(3). Thus, the Kansas grievance process 

contemplates both an appeal in proper form to and a decision by the Secretary. 

Indeed, one of the purposes of the exhaustion requirement is to “allow[] a prison to 

address complaints about the program it administers before being subjected to suit.” 

Jones v. Bock, 549 U.S. 199, 219 (2007). 

 Pusha’s submissions in response to the district court’s show-cause order 

confirmed what was apparent from the allegations in his complaint: he had not 

completed the applicable grievance process before he filed his complaint on January 

13, 2014. His filings did not clearly indicate whether he had filed a proper appeal 

with the Secretary of Corrections before that date.2

 But the Secretary’s January 24 

letter demonstrated that, as of January 13, Pusha had received no response to his 

appeal to the Secretary, much less a decision on the merits. Moreover, the 

Secretary’s response was not a merits decision, it rejected the putative appeal on 

procedural grounds and we do not know whether it amounted to a final decision. 

On appeal, Pusha focuses on the Secretary’s statement in the January 24 letter 

that his grievance appeal failed to reflect any evidence of his grievance having been 

 

2

 In his notice of appeal, Pusha asserted that he submitted his grievance to the 

Secretary of Corrections on January 19, 2014, which was six days after he filed his 

complaint. R., Vol. 1 at 41. But because that information was not before the district 

court, we do not rely on it in affirming the dismissal for failure to exhaust 

administrative remedies. 

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filed with the warden. He argues dismissal of his complaint was improper because 

his filings in the district court showed, contrary to the Secretary’s conclusion, that he 

had filed a grievance with the warden. But his argument misses the mark for 

two reasons: first, he ignores his failure to complete the grievance process by 

awaiting the Secretary’s answer to his grievance, as defined in Kan. Admin. Regs. 

§ 44-15-102(c)(3), before filing his complaint in the district court; second, and more 

important, exhaustion requires a final decision by the Secretary either on the merits 

or imposing a final procedural bar to further process. The Secretary’s decision did 

neither. Since administrative remedies had not been exhausted when the complaint 

was filed dismissal was proper.3

Pusha’s request to proceed on appeal in forma pauperis or ifp is denied as 

moot. The relevant statute, 28 U.S.C. § 1915(a), does not permit litigants to avoid 

payment of fees; only prepayment of fees may be excused. Since we have reached 

the merits of this appeal, prepayment of fees is no longer an issue. Pusha is, 

 

3

 The record does not reveal whether Pusha timely completed the Kansas 

grievance process after he filed his complaint. Substantial compliance with a 

grievance process is insufficient to satisfy the exhaustion requirement. Jernigan, 

304 F.3d at 1032. To properly complete the process, a prisoner must correct any 

deficiencies in his submissions. Id. (holding prisoner failed to exhaust administrative 

remedies when he filed suit rather than attempting to cure a deficiency in his 

grievance submission). Pusha’s “it should not matter” argument is unavailing. His 

obstinate disregard of clear regulations may have left him without an opportunity to 

cure his procedural problem (not including the Warden’s decision in his appeal 

papers) with the Secretary. 

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nevertheless, required to pay all filing and docketing fees. Payment must be made to 

the Clerk of the District Court. 

 Affirmed. 

 Entered for the Court 

 Terrence L. O’Brien 

 Circuit Judge 

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