                                                                          FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                September 7, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 TERRENCE R. BRIDGEFORTH,

               Plaintiff-Appellant,                      No. 10-7024
          v.                                            (E.D. of Okla.)
 SERGEANT WALKER, and                       (D.C. No. 6:09-CV-00136-RAW-SPS)
 OFFICER MARSHALL,

               Defendants-Appellants.


                            ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges. **


      Terrence R. Bridgeforth, a former state prisoner appearing pro se, 1 appeals

the district court’s dismissal of the prisoner abuse claim he brought under 42

U.S.C. § 1983. The district court found Bridgeforth failed to exhaust his

available administrative remedies before bringing suit. On appeal, Bridgeforth

      *
        This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      1
        Because Bridgeforth is proceeding pro se, we construe his filings
liberally. See Van Deelan v. Johnson, 497 F.3d 1151, 1153 n. 1 (10th Cir. 2007).
challenges that determination, arguing he was barred from initiating the relevant

administrative grievance procedure.

      Having jurisdiction under 18 U.S.C. § 1291, we AFFIRM.

                                   I. Background

      Bridgeforth filed the complaint giving rise to this appeal in federal district

court on April 8, 2009, while he was imprisoned at the Oklahoma State

Penitentiary in McAlester, Oklahoma. At the time, a different lawsuit filed by

Bridgeforth alleging incidents of prisoner abuse was pending in state court. In his

federal action, Bridgeforth seeks relief for violations of his constitutional rights

he alleges occurred in March 2009, three months after he filed his state court

action.

      Specifically, Bridgeforth alleges that, during an argument with Sergeant

Walker on March 25, 2009, Sergeant Walker stated he would come to

Bridgeforth’s cell and beat him. Bridgeforth also asserts he was subjected to

more harassment the next day. He alleges he was denied his meals, heckled, had

the water and lights in his cell turned off, and that Sergeant Walker, Officer

Marshall, and two other unidentified corrections officers beat him. Bridgeforth

further maintains he suffered a swollen eye and leg, soreness, dizziness, blurred

vision, cuts, and bruises as a result of the beating.

      Sergeant Walker and Officer Marshall deny the incidents ever occurred.




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       The Oklahoma Department of Corrections (ODOC) has an established

administrative grievance procedure. Bridgeforth did not initiate the grievance

process regarding the events he alleges occurred in March 2009. Instead, he filed

suit in federal district court.

       Below, Sergeant Walker and Officer Marshall argued this action should be

dismissed, and alternatively that they were entitled to summary judgment, because

Bridgeforth did not exhaust his available administrative remedies before bringing

suit. The district court agreed with Sergeant Walker and Officer Marshall and

granted their motion to dismiss.

                                   II. Discussion

       Bridgeforth contends the district court erred by dismissing his action. He

argues he should not have to exhaust the available administrative process because

the prison’s grievance policy bars inmates from pursuing the administrative

grievance procedure for matters that are in litigation. He contends his state court

action satisfies this exception even though it involves a different claim.

       We review de novo a district court’s finding that a prisoner-plaintiff failed

to exhaust administrative remedies. See Thomas v. Parker, 609 F.3d 1114, 1117

(10th Cir. 2010).

       Under the Prisoner Litigation Reform Act, a prisoner must exhaust his

available administrative remedies before filing a lawsuit regarding prison

conditions in federal court. See 42 U.S.C. § 1997e; Little v. Jones, 607 F.3d

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1245, 1249 (10th Cir. 2010). “Because the prison’s procedural requirements

define the steps necessary for exhaustion, an inmate may only exhaust by properly

following all of the steps laid out in the prison system’s grievance procedure.”

Little, 607 F.3d at 1249 (internal citation omitted). If a plaintiff is a prisoner

when he files suit, § 1997e’s exhaustion provision applies. See Norton v. City of

Marietta, 432 F.3d 1145, 1150 (10th Cir. 2005).

      The prison’s grievance policy requires an informal consultation with staff,

then three written steps: completion of a Request to Staff form, filing of a formal

grievance with the facility head, and submission of an appeal to the

Administrative Review Authority. See R. at 46S52; Thomas, 609 F.3d at 1117.

Prisoners exhaust the administrative process only after they complete all of these

steps. The grievance policy also provides, “Grievances may not be submitted

about matters that are in the course of litigation.” R. at 44.

      Bridgeforth was an inmate at the time he initiated this case and thus is

subject to the requirements of the PLRA. The PLRA requires prisoners to exhaust

all of their available administrative remedies before filing suit. Bridgeforth did

not comply with that requirement. And, his argument that he should be excused

from satisfying the exhaustion provision because similar issues are involved in his

state court case reads the prohibition on which he relies too broadly.

      The prison’s grievance policy bars inmates from proceeding with the

grievance procedure if submissions would involve “matters that are in the course

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of litigation.” R. at 44. Here, while Bridgeforth’s state court case and the alleged

events involving Sergeant Walker and Officer Marshall raise similar issues

because they both relate to prisoner abuse, they do not concern the same “matter.”

Bridgeforth’s state court case—filed in December 2008—concerns a matter or

matters that occurred prior to his federal court claims. He cannot bypass the

administrative grievance procedure by grafting the March 2009 matter on to the

matter or matters that arose before December 2008—i.e., by filing an amended

complaint in the state court case—because the administrative process is to be

undertaken for each separate incident.

      In short, Bridgeforth’s state court case does not excuse him from complying

with the prison’s grievance policy and he is therefore subject to the PLRA’s

exhaustion provision.

                                  III. Conclusion

      For the foregoing reasons, we AFFIRM the district court. We also DENY

Bridgeforth’s request to proceed in forma pauperis on appeal. While Bridgeforth

has shown a financial inability to pay the required fees, he has not demonstrated a

reasoned, non-frivolous argument on the law and facts in support of the issues




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raised on appeal. See McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812S13

(10th Cir. 1997).



                                                Entered for the Court,

                                                Timothy M. Tymkovich
                                                Circuit Judge




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