                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 9, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 DELBERT McNEIL,

      Petitioner - Appellant,
                                                        No. 09-7031
 v.                                           (D.C. No. CIV-07-425-RAW-SPS)
                                                         (E.D. Okla.)
 BRUCE HOWARD, Warden; MARK
 SHIPMAN; SPANGLER; SANDERS;
 PLAMER; LEATHERWOOD;
 KELLY; NAYLOR; STEELMAN;
 WOODRAL; BJ ROWTON; POGUE;
 CLINTON; WILLIAMS,

      Respondents - Appellees.



                            ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


       Delbert McNeil, a state prisoner proceeding pro se, filed suit pursuant to 42

U.S.C. § 1983, alleging that Defendants, employees and officials at the Jim E.

Hamilton Correctional Center, violated his constitutional rights by giving him a


       *
             This Order and Judgment is not binding precedent, except under the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 appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in
the determination of this matter. See Fed. R. App. P. 34(a)(2). The case is
therefore ordered submitted without oral argument.
job assignment that was racially discriminatory and deliberately indifferent to his

medical needs. He sought damages in the amount of $500,000 from each

defendant. The district court granted Defendants’ motion to dismiss, finding that

Mr. McNeil had failed to exhaust administrative remedies. R., Vol. I, Doc. 59, at

4 (Dist. Ct. Order, filed Mar. 20, 2009). This Court has jurisdiction pursuant to

28 U.S.C. § 1291. Construing Mr. McNeil’s pro se filings liberally, Erickson v.

Pardus, 551 U.S. 89, 94 (2007), we affirm.

                                 BACKGROUND

      On September 18, 2007, Mr. McNeil was assigned the job of “door

greeter,” the principal responsibilities of which involved opening a door for food

service workers who approached with their hands full. Though Defendants say

that the position was created to accommodate Mr. McNeil’s disability (he has a

back injury), Mr. McNeil claims instead that it was created “for the sole purpose

to humiliate and discriminate against him” and to send a message to black inmates

that they were “inferior.” Aplt. Br. at 2-B. Mr. McNeil alleges that he was

repeatedly required to say “Good morning, welcome to cell house one” while

“waiving, smiling, showing teeth, wide eyed, and with a dialog [sic] of

happiness.” Aplt. Reply Br. at 2. He claims he was forced to work for eight-hour

shifts with only one fifteen-minute break, in deliberate contradiction of his

medical restrictions prohibiting “prolonged sitting or standing.” Aplee. Br. at 3.




                                         -2-
         Pursuant to the Oklahoma Department of Corrections (DOC)

“Inmate/Prisoner Grievance Process,” R., Vol. 1, Doc. 35-1 (DOC Manual

OP–090124), Mr. McNeil filed an informal “Request to Staff” (RTS) grievance on

September 30, twelve days after he was assigned to the door greeter job. On

October 5, a prison official responded to his complaint. Though not agreeing that

the job was discriminatory, the official stated that he had taken steps to have Mr.

McNeil reassigned to a more productive job within his medical restrictions. Mr.

McNeil continued with the DOC grievance process. He eventually attempted to

appeal to the final prison authority, but his complaint was returned unanswered

because his initial September 30 RTS grievance had been submitted “out of time

from date of incident.” Aplt. Br. at 2-C. Mr. McNeil then filed this suit in the

district court. The court dismissed the case, holding that because of the untimely

filing Mr. McNeil “failed to properly exhaust his available administrative

remedies in accordance with DOC’s grievance procedures.” R., Vol. I, Doc. 59,

at 4. Mr. McNeil appealed.

                              STANDARD OF REVIEW

         “We review de novo the district court’s finding of failure to exhaust

administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.

2002).




                                           -3-
                                  DISCUSSION

      The Prison Litigation Reform Act provides 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). Proper exhaustion includes compliance with filing deadlines.

Woodford v. Ngo, 548 U.S. 81, 90 (2006) (exhaustion requires “using all steps

that the agency holds out, and doing so properly” (quoting Pozo v. McCaughtry,

286 F.3d 1022, 1024 (7th Cir. 2002))); see also Jernigan, 304 F.3d at 1032. The

prison grievance process itself determines whether a prisoner has properly

exhausted his claims. Jones v. Bock, 549 U.S. 199, 218 (2007).

      The Inmate/Prisoner Grievance Process provides for a three-step review. To

make a complaint about a prison incident, an inmate must first submit a RTS

“within seven calendar days of the incident.” DOC Manual OP–090124 at

(IV)(B)(2). After an intermediate review, the prisoner may appeal to the

Administrative Review Authority (ARA) or Chief Medical Officer, and only a

decision from one of these will make a decision “final” for exhaustion purposes.

      Mr. McNeil was assigned the door greeter job on September 18; he filed his

informal RTS on September 30. He eventually appealed to the ARA, but because

the period between September 18 and September 30 exceeded the seven-day limit

provided by the DOC regulations, the ARA rejected the petition as untimely. The

                                         -4-
district court found that Mr. McNeil had failed to exhaust his administrative

remedies and dismissed the case.

      Mr. McNeil contends that it is error to use September 18 as the date of the

door greeter “incident” for filing purposes. He claims that “[a]n incident can only

occur after an event,” Aplt Br. at 3-D, and thus it is not September 18 but October

5, 2007 (when he was transferred out of the door greeter job) that “establishes the

act and task to be an incident,” id. at 2-A. In support of his interpretation, Mr.

McNeil cites to the dictionary definition of “incident,” as well as to historical and

commonsense usages of the word. He also notes that his allegedly untimely RTS

was not rejected at the first or second levels of review; not until the final appeal

did the DOC contend that the filing was deficient. This shows that the DOC itself

initially adopted Mr. McNeil’s understanding of “incident” and that Defendants

now are “selecting what is convenient to obstruct the relief appellant is entitled to

under the Constitution and state law.” Aplt. Br. at 3-G–H. 1



      1
             Defendants suggest that “this statement may be viewed as tantamount
to one alleging that DOC waived any arguments as to the timeliness of the RTS
because it was not first identified at the grievance level.” Aplee. Br. at 15. We
believe that Mr. McNeil offers this argument in support of his definition of
“incident” and not as a separate waiver argument. Even if it is meant to be a
waiver argument, his “skeletal reference is insufficient to raise . . . a discrete
appellate issue” and it must be considered forfeited. United States v. Pursley, 577
F.3d 1204, 1231 n.17 (10th Cir. 2009); see also Bronson v. Swensen, 500 F.3d
1099, 1105 (10th Cir. 2007) (“[C]ursory statements, without supporting analysis
and case law, fail to constitute the kind of briefing that is necessary to avoid
application of the forfeiture doctrine.”).

                                         -5-
      Mr. McNeil’s novel definition of “incident” is not viable. There is no

dispute that the job assignment (and the actions of prison staff in giving Mr.

McNeil the job) took place on September 18. Moreover, Mr. McNeil himself

initiated the grievance process on September 30—undercutting his argument that

October 5 should be considered the “incident” date. It is therefore entirely

reasonable to conclude that the time period for filing began on September 18,

making Mr. McNeil’s RTS untimely. Cf. Del. State Coll. v. Ricks, 449 U.S. 250,

258 (1980) (“[T]he proper focus is upon the time of the discriminatory acts, not

upon the time at which the consequences of the acts became most painful.”

(quoting Abramson v. Univ. of Haw., 594 F.2d 202, 209 (9th Cir. 1979)) (internal

quotation marks omitted)); Proctor v. United Parcel Serv., 502 F.3d 1200, 1206

(10th Cir. 2007) (“In general, a cause of action accrues on the date the employee

is notified of an adverse employment decision by the employer.” (quoting Haynes

v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1219 (10th Cir. 2006)) (internal

quotation marks omitted)); Baker v. Bd. of Regents of State of Kan., 991 F.2d 628,

632 (10th Cir. 1993) (“Federal law controls questions relating to accrual of

federal causes of action. A civil rights action accrues when the plaintiff knows or

has reason to know of the injury which is the basis of the action.” (citations

omitted)).

      In addition, Mr. McNeil’s understanding of “incident” would undermine the

prison’s dispute resolution process. Strict adherence to exhaustion requirements

                                         -6-
“protects administrative agency authority” and “gives an agency an opportunity to

correct its own mistakes with respect to the programs it administers before it is

haled into federal court.” Woodford, 548 U.S. at 89 (internal quotation marks

omitted). As Defendants note, to adopt Mr. McNeil’s definition would make the

prison grievance policy useless. “DOC would have no knowledge of the

problem/action alleged and thus no ability to initiate corrective action because the

inmate would not be required to grieve or provide notice of such until after the

problem was discontinued or abandoned.” Aple. Br. at 11.



                                  CONCLUSION

      For the foregoing reasons, the judgment of the district court is AFFIRMED.

                                               Entered for the Court



                                               Jerome A. Holmes
                                               Circuit Judge




                                         -7-
