                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                   September 13, 2006
                           FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                       Clerk of Court

    RU SSELL M . BO LES,

               Plaintiff-Appellant,

    v.                                            Nos. 05-1479 & 06-1036
                                                   (D.C. No. 05-cv-1661)
    RICH AR D D AN SDILL; LT.                            (D . Colo.)
    PEO PLES; TO M M A LLA RY ;
    TIM OTH Y CR EA NY; M ICH AEL S.
    W A L SH ; M IK E LA V O TO ;
    DONA ZAVISLAN; GLORIA
    M A STERSO N ; A N TH O N Y A.
    DeCESAR O; ALL EM PLOYEES
    O F TH E D EPA RTM EN T O F
    CO RRECTION S; ALL EM PLOYEES
    O F CLINIC AL SER VIC ES FO R THE
    D O C; A LL EM PLO Y EES O F THE
    PHARM ACY SERVING THE DOC,

               Defendants-Appellees.



                            OR D ER AND JUDGM ENT *


Before H E N RY, A ND ER SO N, and M cCO NNELL, Circuit Judges.




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      Russell M . Boles appeals the district court’s denial of his motion for

preliminary injunctive relief (No. 05-1479) and dismissal of his 42 U.S.C. § 1983

suit for lack of exhaustion of administrative remedies (No. 06-1036). W e have

jurisdiction under 28 U.S.C. §§ 1291 and 1292(a)(1). W e AFFIRM the district

court’s decision in No. 05-1479, but we REVERSE and REM AND for further

proceedings in No. 06-1036.

                                          I.

      M r. Boles challenges the conditions of his incarceration, particularly the

food and medical care he is being provided. After he filed his initial complaint,

the district court denied his motions for a temporary restraining order and a

preliminary injunction because he had alleged no facts showing immediate and

irreparable injury. Soon thereafter, the court ordered M r. Boles to file an

amended complaint that complied w ith Fed. R. Civ. P. 8(a). The court also

reminded M r. Boles that he must plead exhaustion of administrative remedies.

See Steele v. Fed. Bur. of Prisons, 355 F.3d 1204, 1210 (10th Cir. 2003).

      M r. Boles filed an amended complaint and certain grievance responses and

other documents regarding his exhaustion of his administrative remedies. He then

filed a second amended complaint containing three claims. For each claim,

M r. Boles identified the applicable grievance numbers and referred the court to

the documents he had filed in conjunction with his first amended complaint.

                                          -2-
After reviewing the second amended complaint and M r. Boles’s documents, the

district court dismissed his suit without prejudice because M r. Boles had not

adequately shown that he exhausted his administrative remedies for his second

claim.

         In both his appeals, M r. Boles primarily challenges the district court’s

finding of lack of exhaustion. He does not establish how the district court erred

in concluding that he had not shown, as of the time he requested injunctive relief,

that he w ould suffer immediate and irreparable injury. Consequently, we affirm

the district court’s denial of preliminary injunctive relief. 1

         W e agree with M r. Boles, however, that he show ed exhaustion to the best

of his ability, given the limitations under w hich he labored. For each of his

claims, he identified specific grievance numbers. For each grievance, he either

attached the Step 3 grievance officer’s response that confirmed exhaustion or

attached a “copy” 2 of the Step 3 grievance itself and explained that he had not yet

received a response, although the 45-day response period had expired. He also

attached a memorandum from the Step 3 grievance officer acknowledging delays


1
       On appeal, M r. Boles states that the deprivations he then feared have now
occurred. To the extent the situation has changed since the district court’s
decision, M r. Boles may file another request for preliminary injunctive relief in
the district court on remand.
2
       Apparently in instances in which he had not yet received a response from
the Step 3 grievance response officer, M r. Boles also did not have a copy of his
Step 3 grievance to supply to the court. Instead, he submitted handwritten copies
that he indicated w ere fair copies of the originals.

                                            -3-
in processing grievances, supporting his allegation that he had not received a

response to the grievances associated with his second claim. 3

      Importantly, M r. Boles alleged before the district court and reiterates in this

court that the prison law library refused to copy his grievances. In the district

court, he supported his allegation by attaching a November 7, 2005, document

reflecting a partial denial of services, in which the law library states: “The

material you have submitted will not be copied by the legal access program in

whole/in part [because] [y]our photocopy request exceeds the page limit

established by the legal access program.” R. Doc. 28 at 15. W e recognize that

such prison limitations on copying attachments may preclude a prisoner from

fully supporting his or her pleading, though of course prisoners should provide as

much information as possible to aid the court in evaluating exhaustion.

      In Steele, this court recognized prisoners are required to plead exhaustion,

but provided for cases in which prisoners’ submissions might not be conclusive:

      There will be cases, however, in which the correct resolution of an
      exhaustion issue will not become apparent during the district court’s
      screening process. For instance, a prisoner may allege exhaustion
      and either attach ambiguous documents arising from the grievance
      process or submit a misleading declaration. If the case is not
      otherwise subject to dismissal on its face as frivolous, malicious or

3
      W ith regard to his second claim, M r. Boles referenced grievance number
FF 04/05-549, but he did not include any documents with that grievance number.
Instead, he included a handwritten copy of an otherwise unlisted grievance,
FF 04/05-105, which clearly relates to the second claim. W hile the discrepancy is
somewhat puzzling, it is not fatal to M r. Boles’s allegations of exhaustion at this
stage of the proceedings.

                                         -4-
      because it fails to state a claim upon which relief can be granted, or
      seeks monetary relief from a defendant who is immune from such
      relief, the case should go forward. But § 1997e(a) gives prisons and
      their officials a valuable entitlement–the right not to face a decision
      on the merits. Defendants with a colorable argument based on lack
      of exhaustion, therefore, may raise it in a dispositive motion, to be
      addressed promptly by the court.

355 F.3d 1211-12 (quotations and citations omitted). M r. Boles pleaded

exhaustion and provided such documentation as w as reasonably within his ability

to submit. The district court did not determine that the case was frivolous or

malicious or that M r. Boles sought monetary relief from defendants immune to

such relief. Thus, the district court should have allowed the case to go forw ard.

If defendants have a colorable argument based on lack of exhaustion, they may

raise it in a dispositive motion.

      The district court’s denial of a temporary restraining order and preliminary

injunctive relief (appeal No. 05-1479) is AFFIRM ED. Its judgment dismissing

the case (appeal No. 06-1036) is REV ERSED and REM AN DED FOR FURTHER

PRO CEED INGS.


                                                    Entered for the Court



                                                    M ichael W . M cConnell
                                                    Circuit Judge




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