                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          FEB 19 2004
                                    TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 STEPHEN JOE HOOVER,

          Plaintiff - Appellant,
 v.
                                                        No. 03-7106
 KELLY WEST; EARL MARKLAND;                       (D.C. No. CIV-02-418-S)
 ROYCE MELTON; J. D. DAVIS;                             (E.D. Okla.)
 GARY GIBSON; RANDALL
 WORKMAN; FRANK KEATING,

          Defendants - Appellees.


                             ORDER AND JUDGMENT *


Before EBEL, MURPHY, and McCONNELL, Circuit Judges.


      Stephen J. Hoover (“Plaintiff”), a former Oklahoma prisoner appearing pro

se and in forma pauperis, 1 filed this action pursuant to 42 U.S.C. § 1983 while he

      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) 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not binding precedent, except under the doctrines of law of the case, res judicata,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. 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.
      1
       Plaintiff was released from custody prior to filing his notice of appeal, and
thus the filing fee provisions of the Prison Litigation Reform Act do not apply to
this appeal. See 28 U.S.C. § 1915(a), (b), (h); Whitney v. New Mexico, 113 F.3d
                                                                       (continued...)
was incarcerated. The district court granted Defendants’ motion to dismiss for

failure to exhaust administrative remedies under 42 U.S.C. § 1997(e)(a), and

Plaintiff now appeals. For the following reasons, we AFFIRM the district court’s

order.

                                  BACKGROUND

         Plaintiff alleged that on August 1, 2000, Sergeant Kelly West, supervised

and assisted by other prison officials, assaulted and battered Plaintiff while he

was wearing full restraints during his cellmate’s cell abstraction. The next day,

Plaintiff submitted a “Request to Staff” to Randall Workman, a Deputy Warden,

who denied it on August 16, 2000. Plaintiff then filed a grievance to the Warden

on that same day. On August 21, 2000, the Warden’s office returned the

grievance to Plaintiff unanswered on the ground that Plaintiff had previously filed

a grievance regarding the same issue. Defendants have since conceded that the

Warden’s office made a mistake regarding this rationale, as no other previous

grievance was filed regarding this incident.

         Plaintiff then appealed the issue to the Administrative Review Authority

(ARA), which returned his grievance unanswered on August 31, 2000 because he




       (...continued)
         1

1170, 1171 n.1 (10th Cir. 1997). Based on our review of Plaintiff’s financial
declarations, we grant his motion to proceed in forma pauperis on appeal. See 28
U.S.C. § 1915(a)(1).

                                         -2-
had improperly attached additional pages to the grievance and because he had not

received a response from the facility head (the Warden). The Administrative

Review Authority gave Plaintiff ten additional days to correct the deficiencies and

properly submit the grievance. Instead of attempting to cure during this time

period, 2 Plaintiff filed a lawsuit in the Eastern District of Oklahoma pursuant to

42 U.S.C. § 1983, alleging cruel and unusual punishment in violation of the

Eighth Amendment and denial of due process in violation of the Fourteenth

Amendment.

      Defendants moved to dismiss under Rule 12(b)(6) on the ground that

Plaintiff had failed to exhaust his administrative remedies as required by 42

U.S.C. § 1997(e)(a). The district court granted the motion and Plaintiff now

appeals.

                                   DISCUSSION

      We exercise jurisdiction over this appeal from the district court’s final

order pursuant to 28 U.S.C. § 1291. We review de novo the district court’s

dismissal for failure to exhaust administrative remedies under 42 U.S.C. §

1997(e)(a). Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002).



      2
       Plaintiff did attempt to refile his grievance to the Administrative Review
Authority (ARA) on June 21, 2002. However, the ARA returned it for
untimeliness because it was filed almost two years after he had been given ten
days to correct the above deficiencies.

                                         -3-
      A.     The Exhaustion Requirement of the Prison Litigation Reform
             Act (PLRA)

      The general rule is that plaintiffs need not exhaust administrative remedies

before filing a § 1983 suit. Porter v. Nussle, 534 U.S. 516, 523 (2002).

However, as part of the 1996 Prison Litigation Reform Act (PLRA), Congress

added an exhaustion requirement for prisoners’ suits regarding prison conditions.

42 U.S.C. § 1997(e)(a). The provision, entitled “Suits by Prisoners,” 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.

42 U.S.C. § 1997(e)(a). The Supreme Court has held that this exhaustion

requirement for suits regarding “prison conditions” applies to “all inmate suits

about prison life, whether they involve general circumstances or particular

episodes, and whether they allege excessive force or some other wrong.” 3 Porter,

534 U.S. at 531.

      “Although section 1997(e)(a) mandates the exhaustion of administrative

remedies, a plaintiff’s failure to fulfill a statutory requirement does not

necessarily deprive the federal courts of subject matter jurisdiction.” Chelette v.



      3
         The government asserts, without citation to the record or reference to
dates, that Plaintiff was still incarcerated at the date of filing his complaint.
Plaintiff does not seem to contest this. Therefore, it appears that the PLRA
exhaustion requirement applies.

                                         -4-
Harris, 229 F.3d 684, 687 (8th Cir. 2000). The Supreme Court has held that the

language of the exhaustion requirement must contain “‘sweeping and direct’

language indicating that there is no federal jurisdiction prior to exhaustion, or else

the exhaustion requirement is treated as an element of the underlying claim.” Id.

(quoting Weinberger v. Salfi, 422 U.S. 749, 757 (1975)). Because § 1997(e)(a)

does not contain this sort of “sweeping and direct” language, every circuit court

that has considered the issue has found that the PLRA exhaustion requirement is

not jurisdictional. Id. (collecting cases); see also Ali v. District of Columbia, 278

F.3d 1, 5-6 (D.C. Cir. 2002) (same). We recently joined our sister circuits in

finding that the PLRA exhaustion requirement, although mandatory, is not a

prerequisite to our jurisdiction. 4 Steele v. Federal Bureau of Prisons, __ F.3d __,

2003 WL 23019855, *3 (10th Cir. 2003).

      An inmate must not only begin the administrative grievance process in

order to meet the exhaustion requirement, but must also complete it in compliance

with administrative rules. Jernigan, 304 F.3d at 1032. Even if the administrative

process does not provide the particular relief sought by the plaintiff, he or she is

still required to exhaust all administrative procedures that are available. Booth v.


      4
        Therefore, Plaintiff is correct when he argues that § 1997(e)(a) is not
jurisdictional. However, this argument does not get him far as the district court
would still have been required to dismiss his complaint had he failed to exhaust.
Section 1997(e)(a) is mandatory and requires dismissal of any case in which an
available administrative remedy has not been exhausted.

                                         -5-
Churner, 532 U.S. 731, 741 (2001). Similarly, the plaintiff is required to exhaust

all available procedures offered by the prison even if doing so appears “futile.”

Jernigan, 304 F.3d at 1032; see also Giano v. Goord, 250 F.3d 146, 150-51 (2d

Cir. 2001) (“[T]he alleged ineffectiveness of the administrative remedies that are

available does not absolve a prisoner of his obligation to exhaust such

remedies[.]”); Perez v. Wisconsin Dep’t of Corrections, 182 F.3d 532, 536-37

(7th Cir. 1999) (finding that the PLRA exhaustion requirement has no “futility

exception,” and stating that “[n]o one can know whether administrative requests

will be futile; the only way to find out is to try”) (emphasis in original).



      B.     Defendants’ administrative procedure provided a remedy that
             triggered the exhaustion requirement of § 1997(e)(a).

        Plaintiff first argues that the Oklahoma Department of Corrections

(“DOC”) provides no remedy for his allegations. According to Plaintiff, this is

because the grievance process cannot be used to discipline staff and because the

Oklahoma Governmental Tort Claims Act does not provide a cause of action for

“individual non-official acts.” (Aplt. Br. at 10-11.)

      However, the Supreme Court has held that as long as the administrative

procedures have “authority to take some action in response to a complaint,” that is

enough of a remedy to trigger the exhaustion requirement. Booth, 532 U.S. at 736

(emphasis added). For example, although the procedures may not provide

                                          -6-
monetary relief, they might provide for transfer to another facility or at least a

hearing on grievances. See Larkin v. Galloway, 266 F.3d 718, 723 (7th Cir.

2001). Plaintiff does not argue that transfers or hearings were not available

through this process, and it is not sufficient for him to simply point to the lack of

either a tort cause of action or an inmate-initiated disciplinary action against staff.

The administrative procedures provided some remedy and Plaintiff is obligated to

exhaust those procedures even if the available remedy is not one of his choosing.

See Booth, 532 U.S. at 741.



      C.     Plaintiff did not exhaust all “available” administrative
             procedures, and Defendants’ actions did not render these
             procedures “unavailable.”

      Plaintiff next argues that he exhausted all administrative procedures that

were available to him and that any further procedures were made “unavailable” by

Defendants’ actions. He is frustrated by the fact that the Warden initially erred in

declining to respond to his grievance based on the misconception that a previous

grievance had been filed on the same issue. 5 Yet, when Plaintiff attempted to

appeal, the Administrative Review Authority (ARA) refused to respond in part

because the Warden had not yet responded. It is true that Plaintiff seems to have



      Defendants now concede that the Warden erred in this initial refusal to
      5

respond to Plaintiff’s grievance, as there existed no previous grievances on this
August 1, 2000 incident.

                                          -7-
been caught in a catch-22. However, the ARA gave him ten days to cure this

deficiency, and instead of even attempting to obtain a response from the Warden

or explain the mistake to the ARA within that time period, he filed the instant suit

in district court.

       Plaintiff is correct that § 1997(e)(a) only requires him to exhaust

administrative procedures that are made “available” to him. Courts “refuse to

interpret the PLRA so narrowly as to permit prison officials to exploit the

exhaustion requirement through indefinite delay in responding to grievances.”

See Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002) (quotation omitted).

Instead, we examine the plain meaning of the term “available” in § 1997(e)(a) and

find that a prisoner is only required to exhaust those procedures that he or she is

reasonably capable of exhausting. See Underwood v. Wilson, 151 F.3d 292, 295

(5th Cir. 1998). For example, “[T]he failure [of prison officials] to respond to a

grievance within the time limits contained in the grievance policy renders an

administrative remedy unavailable.” Jernigan, 304 F.3d at 1032. Similarly, a

prisoner lacks “available” remedies where prison officials deny him or her the

necessary grievance forms. Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003).

Where prison officials prevent or thwart a prisoner from utilizing an

administrative remedy, they have rendered that remedy “unavailable” and a court




                                         -8-
will deem that procedure “exhausted.” See Lyon v. Vande Krol, 305 F.3d 806,

808 (8th Cir. 2002); Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001).

      However, in the instant case, Plaintiff was given ten days to cure the

deficiency, yet failed to make any such attempt. This is similar to the situation

we faced in Jernigan, 304 F.3d at 1032-33, where we held that the plaintiff had

not exhausted his remedies where he failed to cure a deficiency in his appeal

related to obtaining a response from the head prison official, even though it may

have been the prison official’s fault for misplacing his grievance. We noted that

the plaintiff “was given ten days to cure the deficiency in question which no

doubt would have involved informing prison officials of the lost or misfiled

grievance.” Id. at 1032. We stated that the plaintiff could not “successfully

argue that he had exhausted his administrative remedies by, in essence, failing to

employ them[.]” Id. at 1033. There, as here, the grievance policy provided a time

frame for prison officials’ responses, after which the plaintiff could appeal with

evidence of attempts to obtain a response. Id. Plaintiff has not shown us any

reason why he could not have brought the mistake regarding the previous

grievance to the Warden’s attention (or the ARA’s) within the 10-day time period.

Because he did not even try to cure this deficiency, we affirm the district court’s

dismissal for lack of exhaustion. See id.




                                         -9-
      D.     Defendants are not equitably estopped from moving to dismiss
             for failure to exhaust.

      Finally, Plaintiff argues that because it was Defendants’ mistake that

caused him to fall short of fully exhausting the administrative procedures, they

should be equitably estopped from moving to dismiss based on § 1997(e)(a). We

disagree.

      “The Fifth Circuit is the only circuit to hold that equitable estoppel can

apply to the PLRA exhaustion requirement.” Lewis, 300 F.3d at 834 (citing

Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998)). This holding is

“persuasive because non-jurisdictional prerequisites to suit in federal court are

typically subject to equitable estoppel.” Id. (citing Zipes v. Trans World Airlines,

Inc. 455 U.S. 385, 393 (1982)). However, the Seventh and Tenth Circuits have so

far declined to decide whether equitable estoppel applies because their cases have

fallen short of meeting the elements of equitable estoppel. See id.; Jernigan, 304

F.3d at 1033.

      To establish equitable estoppel, the party claiming estoppel must show: (1)

a misrepresentation by the opposing party; (2) reasonable reliance on that

misrepresentation; and (3) detriment. Emery Mining Corp. v. Secretary of Labor,

744 F.2d 1411, 1417 (10th Cir. 1984). It is also well-settled that the

“Government may not be estopped on the same terms as any other litigant,” and

the burden on the party seeking estoppel against the government is heavier.

                                        - 10 -
Heckler v. Cmmty. Health Servs. of Crawford County, 467 U.S. 51, 60 (1984).

“When asserting equitable estoppel against the government, one must also prove

affirmative misconduct.” Lewis, 300 F.3d at 834.

      In the instant case, Plaintiff merely argues that the prison officials have

“misrepresented” that they have a grievance procedure and that they will answer

grievances. (Aplt. Br. at 18.) However, he has pointed to no statement made to

him regarding his grievance or the deadlines which could constitute a

misrepresentation. Nor does he show that he relied on any of Defendants’

statements to him. In fact, Plaintiff was the one who knew that Defendants’

statements regarding his previous grievance were mistaken. Just like the plaintiff

in Jernigan, Plaintiff cannot show detrimental reliance on prison officials. See

Jernigan, 304 F.3d at 1033 (stating that plaintiff could not show detrimental

reliance, “having been told that his grievance had been lost or misfiled and having

been given an opportunity to cure”). Because Plaintiff fails to show either a

misrepresentation or detrimental reliance, he has clearly failed to state a claim

regarding equitable estoppel. Thus, we need not reach the issue of whether

equitable estoppel applies to the PLRA exhaustion requirement.

                                  CONCLUSION

      For the foregoing reasons, we AFFIRM the order of the district court




                                        - 11 -
dismissing Plaintiff’s § 1983 claim for failure to exhaust under § 1997(e)(a).



                                       ENTERED FOR THE COURT


                                       David M. Ebel
                                       Circuit Judge




                                        - 12 -
