                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           April 28, 2006

                                 TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                          Clerk of Court



 ARTHUR PRICE,

          Plaintiff-Appellant,
                                                        No. 05-1382
 v.
                                                (D.C. No. 05-CV-00631-ZLW)
                                                          (Colorado)
 DR. RINA SHINN, DR. POUNDS,
 DR. ALEA PETERS, DR. CABLING,

          Defendants-Appellees.




                          ORDER AND JUDGMENT *


Before MURPHY, SEYMOUR, and McCONNELL, Circuit Judges.


      Arthur Price, a state prisoner proceeding pro se, 1 brought a civil rights



      *
       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 submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.

      We construe Mr. Price’s filings liberally because he is proceeding pro se.
      1

Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991).
action under 42 U.S.C. § 1983, alleging that various medical professionals and

prison officials violated his Eighth Amendment rights by denying him surgery as

well as mental health treatment for post traumatic stress disorder (PTSD). The

district court dismissed Mr. Price’s case without prejudice for failing to exhaust

administrative remedies. We review the district court’s ruling de novo, see

Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002), and affirm.

      The Prisoner Litigation Reform Act (PLRA) directs that “[n]o 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.” 42 U.S.C. § 1997e(a); see also Porter v. Nussle, 534 U.S. 516,

524-25 (2002). 2 We have held that the PLRA’s section 1997e(a) presents a “total

exhaustion requirement” such that “the presence of unexhausted claims in [a

prisoner]’s complaint require[s] [a] district court to dismiss his action in its

entirety without prejudice.” Ross v. County of Bernalillo, 365 F.3d 1181, 1189



      2
        On appeal Mr. Price asserts that the PLRA should not govern his action
because his claims relate to medical and mental health issues, not “prison
conditions.” Aplt. Br. at 3. Mr. Price is mistaken. “[C]omplaints about medical
treatment in prison are complaints about ‘prison conditions.’” Perez v. Wis. Dep’t
of Corr., 182 F.3d 532, 534 (1999); see also Wilson v. Seiter, 501 U.S. 294, 299
n.1 (noting that “if an individual prisoner is deprived of needed medical
treatment, that is a condition of his confinement, whether or not the deprivation is
inflicted upon everyone else.”).

                                          -2-
(10th Cir. 2004). After Mr. Price filed his civil rights action on April 5, 2005, the

district court ordered him to file an amended complaint detailing whether he had

exhausted his administrative remedies for both his surgery and PTSD claims. In

response, Mr. Price asserted that he had tried to exhaust his administrative

remedies but prison staff prevented him from doing so, at least for his surgery

claim, by failing to issue grievance forms or respond to his handwritten

submissions. Rec., doc. 3 at 7; doc. 4 at 7; doc. 12 at 8-9, 21. He also submitted

documentation which he contended exhibited exhaustion of both his claims.

      Mr. Price’s documentation indicates that as to his PTSD claim, he had

completed the formal three-step grievance process required by the Colorado

Department of Corrections. But the final letter Mr. Price received establishing

exhaustion of this claim was dated June 16, 2005, over two months after he filed

his civil rights action in federal court. The exhaustion requirement of the PLRA

requires that a prisoner’s claim be administratively exhausted prior to the filing of

the action in court, rather than during the pendency of that action. See Steele v.

Fed. Bureau of Prisons, 355 F.3d 1204, 1207 (10th Cir. 2003) (“[r]esort to a

prison grievance process must precede resort to a court”) (quoting Porter, 534

U.S. at 529); McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (“§

1997e(a) requires exhaustion before the filing of a complaint and . . . a prisoner

does not comply with this requirement by exhausting available remedies during


                                         -3-
the course of the litigation”) (citing cases). Noting as much, the district court

determined Mr. Price had not exhausted his administrative remedies on the PTSD

claim prior to filing his civil rights action.

       The grievance documentation submitted by Mr. Price regarding his surgery

claim includes two handwritten documents. One is titled “informal resolution

attempt . . . denial of competent treatment” and is dated August 26, 2004. It

alleged, among other things, that Mr. Price required surgery by a competent

surgeon. Rec., doc. 12 at 11. In a subsequent handwritten document dated

October 25, 2004, and titled “Grievance Step III,” Mr. Price claimed that he

received no response to his “informal resolution attempt” of August 26, and

asserted that any requirement that Mr. Price proceed to step II of the grievance

process was therefore waived. Id. at 12. There is no indication that Mr. Price

received any official prison response to either of these documents. Mr. Price

claims prison officials refused to provide him with the required grievance forms

for these 2004 grievances, and likewise failed to respond in a timely manner to

his handwritten submissions. 3 See Aplt. Br. at 3, 18.



       A prisoner who is denied the proper grievance forms lacks an available
       3

administrative remedy. See Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003);
Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001). We have also held that
prison officials’ “failure to respond to a grievance within the time limits
contained in the grievance policy renders an administrative remedy unavailable.”
Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). However, even if Mr.
Price was denied the proper grievance forms and his handwritten submissions

                                            -4-
      Despite the alleged failure of prison officials to provide Mr. Price with the

required grievance forms, Mr. Price’s self-styled documentation does not comply

with the Colorado Department of Corrections grievance procedures. Contrary to

Mr. Price’s submitted “informal resolution attempt” and “Grievance Step III”

documents, which contain a litany of medical complaints against the prison,

grievances “shall address only one problem or complaint.” Colo. Dep’t of Corrs.

Admin. Regulation 805-04 at 3.a (2005). There is also no basis to Mr. Price’s

argument that because he did not receive a response to his “informal resolution

attempt,” the prison waived any requirement that Mr. Price had to proceed to step

II of the grievance process, thereby allowing him to jump to step III. The

regulations direct that “[i]n the event the time limit concerning any step of the

process expires without a response, the offender may proceed to the next step

within five calendar days of the date the response was due.” Id. at D.1.d. Cf.

Jernigan, 304 F.3d at 1030 (administrative remedy not “unavailable” where

regulations provide a bypass in the event inmate does not receive a response).

      As referenced above, Ross provides that the PLRA “requires inmates to

exhaust fully all of their claims before filing in federal court. If a prisoner does




were proper substitutes for the formal grievance process, and even if prison
officials denied him an available administrative remedy by failing to respond to
his grievances in a timely manner, we are not convinced the district court erred in
dismissing Mr. Price’s case for the reasons set forth in text.

                                          -5-
submit a complaint containing one or more unexhausted claims, the district court

ordinarily must dismiss the entire action without prejudice.” 365 F.3d at 1190

(emphasis added). Hence, even if Mr. Price had exhausted his surgery claim, his

failure to fully exhaust his PTSD claim prior to filing his civil rights action

“required the district court to dismiss his action in its entirety without prejudice.”

Id. at 1189. Mr. Price is at liberty to file a new action for those claims that are

now fully exhausted. However, “[the PLRA’s] statutory exhaustion requirement .

. . is mandatory, and the district court was not authorized to dispense with it”

when reviewing Mr. Price’s initial complaint. Beaudry v. Corr. Corp. of Am., 331

F.3d 1164, 1167 n. 5 (10th Cir. 2003).

      The district court is AFFIRMED. 4 Appellant’s motion to add names to the

lawsuit is denied.


                                         SUBMITTED FOR THE COURT


                                         Stephanie K. Seymour
                                         Circuit Judge




      4
        Mr. Price’s request to proceed in forma pauperis on appeal is granted, but
he is reminded that he must continue to make partial payments until his appellate
filing fee is paid in full.


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