                                                                                 FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           October 30, 2014
                                    TENTH CIRCUIT
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court



 ANDREW ANTHONY GOMEZ,

        Plaintiff - Appellant,

 v.                                                          No. 14-2070
                                                  (D.C. No. 2:12-CV-01198-RB-CG)
 JAMES LOPEZ, Warden; ANTHONY                                  (D.N.M.)
 ROMERO, Deputy Warden; EMILY
 GAUTHIER, Control Officer; JESSICA
 LOPEZ, Correction Officer; LOUIE
 NIETO, Correction Officer; JANE and/or
 JOHN DOE, Correction Officer First
 Responders; JANE and/or JOHN DOE,
 Medical Providers,

        Defendant - Appellees.


                                 ORDER AND JUDGMENT*


Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.


        * 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 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
       Andrew Anthony Gomez, a state prisoner proceeding pro se, appeals the district

court’s dismissal of his 42 U.S.C. § 1983 action for failure to exhaust administrative

remedies as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C.

§ 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. Because Gomez did not

properly exhaust his administrative remedies, we affirm.

                                             I

       On November 19, 2012, Gomez filed a pro se complaint alleging that his Eighth

Amendment rights were violated and that prison officials were deliberately indifferent.1

Gomez’s complaint claims that he received inadequate medical care after he was beaten

by a fellow inmate while attempting to prevent that inmate from attacking prison staff.

Over Gomez’s objection that prison staff had thwarted his access to administrative

remedies, the district court concluded that he had not properly exhausted his

administrative remedies. The district court therefore dismissed Gomez’s complaint,

which had by then become time-barred, with prejudice. Gomez timely appealed.

                                            II

       The PLRA requires that “available” administrative remedies be exhausted prior to

filing a § 1983 action with respect to prison conditions. 42 U.S.C. § 1997e(a). Our

       1
        Because Gomez is proceeding pro se, we construe his filings liberally. See Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).


                                           -2-
review of a dismissal under the PLRA for failure to exhaust administrative remedies is de

novo. Patel v. Fleming, 415 F.3d 1105, 1108 (10th Cir. 2005). On appeal, Gomez

repeats a claim he made in district court that prison officials mishandled his informal

grievances, thereby thwarting his attempts to exhaust his administrative remedies. See

Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010) (excusing failure to exhaust

administrative remedies “where prison officials prevent, thwart, or hinder a prisoner’s

efforts to avail himself of an administrative remedy”). Notwithstanding the status of

Gomez’s informal grievances, the district court held that because Gomez failed to file a

formal grievance—the next step in the administrative process—he failed to exhaust his

remedies.

       Gomez attempts to justify his failure to file a formal grievance because New

Mexico’s prison policy does not explicitly provide that an inmate whose informal

grievance receives no response from prison officials can file a formal grievance. He

argues that because his formal grievance would have been returned for lack of an

attached informal grievance, his failure to file a formal grievance should be excused.

       Gomez’s arguments are unavailing. He should have attempted to file a formal

grievance after it was apparent that he would not receive a response to his informal

complaint, and admits that he did not do so. Gomez did not meet his burden of showing

that the remedy he failed to seek—a formal grievance—was unavailable to him. See

Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011). Thus, allowing his claim to


                                           -3-
proceed into the court system would be inconsistent with the PLRA. See Whitington v.

Ortiz, 472 F.3d 804, 807 (10th Cir. 2007) (explaining that the PLRA’s exhaustion

requirement aims to “reduce the quantity and improve the quality of prisoner suits by (1)

allowing prison officials an opportunity to satisfy the inmate’s complaint—thus obviating

the need for litigation; (2) filtering out some frivolous claims; and (3) creating an

administrative record that facilitates review of cases that are ultimately brought to

court.”).

                                           III

       We AFFIRM the district court’s judgment that Gomez failed to exhaust his

administrative remedies. We GRANT Gomez’s motion to proceed in forma pauperis,

but remind him of his obligation to make partial payments until the district court and

appellate filing fees are paid in full. See 28 U.S.C. § 1915(b)(1).



                                           Entered for the Court



                                           Carlos F. Lucero
                                           Circuit Judge




                                            -4-
