                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            February 8, 2006
                                  TENTH CIRCUIT                           Elisabeth A. Shumaker
                                                                              Clerk of Court

 GEORGE W. SMITH, JR.,

               Plaintiff-Appellant,                       No. 04-7102
          v.                                            (E. D. Oklahoma)
 STEVE BECK, Warden; LEWIS                          (D.C. No. CIV-03-331-P)
 MCGEE, Major of Security;
 EDDIE RANEY; UNKNOWN
 OFFICERS; and C.T. HURD, Unit
 Manager,

               Defendants-Appellees.




                            ORDER AND JUDGMENT *


Before EBEL, McKAY, and HENRY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . 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        This order and judgment is not binding precedent, except under the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.
      George W. Smith, Jr., a state prisoner appearing pro se, brings suit pursuant

to 42 U.S.C. § 1983 alleging that prison officials (1) violated his Eighth

Amendment right to be free from cruel and unusual punishment and (2) were

deliberately indifferent to racism in the prison. We exercise jurisdiction pursuant

to 28 U.S.C. § 1291, and AFFIRM the district court’s summary judgment

dismissal for failure to exhaust administrative remedies as required by 42 U.S.C.

§ 1997e(a).

                                I. BACKGROUND

      On September 29, 2002, a prison gang known as the Aryan Brotherhood

attacked and assaulted Mr. Smith, a prisoner who was, at that time, housed at the

Mack Alford Correctional Center. After the attack, Mr. Smith received medical

attention to his eye, and later, was transferred to a different prison.

      In his amended complaint, Mr. Smith states that he spoke with Defendants

Hurd, McGee, and Raney on September 30, 2002, where Mr. McGee told Mr.

Smith that prison officials knew prior to the assault that Mr. Smith was at risk for

attack. Rec. doc. 13, at 2 (Am. Compl., dated Oct. 30, 2003). Mr. Smith also

states that he filed two Requests to Staff on October 2, 2002, one “requesting to

be moved from the hostile area he was in to another location” and another

requesting protective custody. Rec. doc. 19, at 3 (Pl.’s Resp. to Mot. to Dismiss,

dated Feb. 20, 2004); see also Rec. doc. 12, at 3 (Mot. to Strike Def.’s Mot. to


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Dismiss, dated Sept. 30, 2003) (referencing the two Requests to Staff). Later in

October, Mr. Smith was transferred to CCA/Davis Correctional Center in

Holdenville.

      On May 6, 2003, Mr. Smith filed another Request to Staff, labeled it as an

“out of time” request, and requested monetary damages from the Defendants for

their alleged role in his attack and for pain and suffering. Rec. doc. 1, at 7

(Compl., dated June 11, 2003). On June 6, 2003, he filed a grievance also self-

labeled as “out of time,” again requesting monetary damages from the Defendants

because of the September attack. Id. at 8.

      Mr. Smith filed his first complaint in the district court on June 11, 2003,

alleging that the Defendants violated his Eighth Amendment right to be free from

cruel and unusual punishment by keeping him in a hostile environment and

allowing him to be attacked by the prison gang. Additionally, Mr. Smith alleged

that the Defendants were deliberately indifferent to the racism in the prison

because all “support the white race movement and are bias[ed against] black

inmates.” Rec. doc. 13, at 3 (Am. Compl., dated Oct. 30, 2003).

      The Defendants filed a motion to dismiss, and the district court converted

the motion into a motion for summary judgment so it could “consider matters

outside of the record.” Rec. doc. 38, at 2 (Order, dated Sept. 15, 2004). Before

making its decision, the court ordered the Defendants to provide a record or log


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of all grievances that Mr. Smith filed from September 28, 2002 to August 2003.

Rec. doc 30 (Order, dated Aug. 4, 2004). After receiving copies of all grievances

filed, the district court granted the Defendants summary judgment because Mr.

Smith failed to exhaust his administrative remedies as required by 42 U.S.C. §

1997e(a). On appeal, Mr. Smith argues that (1) he did, in fact, exhaust his

administrative remedies, and (2) even if he did not properly exhaust

administrative remedies, it is because prison officials interfered with his ability to

do so.

                                  II. DISCUSSION

         We review de novo a district court’s grant of summary judgment. So.

Hospitality, Inc. v. Zurich Am. Ins. Co., 393 F.3d 1137, 1139 (10th Cir. 2004).

Summary judgment is appropriate if there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law. F ED . R. C IV . P. 56(c).

Below, we consider each of Mr. Smith’s arguments on appeal, viewing the record

in the light most favorable to him. So. Hospitality, 393 F.3d at 1139. We

construe his arguments liberally because he is pro se. Haines v. Kerner, 404 U.S.

519, 520 (1972).

A.       Exhaustion of Remedies

         The Prison Reform Litigation Act (“PLRA”) provides that “[n]o action

shall be brought with respect to prison conditions under section 1983 of this title .

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. . until such administrative remedies as are available are exhausted.” 42 U.S.C. §

1997e(a). The prisoner must exhaust administrative remedies even if

administrative procedures “would appear to be futile at providing the kind of

remedy sought.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002).

“An inmate who begins the grievance process but does not complete it is barred

from pursuing a § 1983 claim under PLRA for failure to exhaust his

administrative remedies.” Id.

      The Oklahoma Department of Corrections (ODOC) has promulgated a set

of procedures that a prisoner must use “prior to filing a lawsuit.” ODOC Policy

OP-090124. First, a prisoner must attempt to resolve the issue informally “by

talking [with an appropriate prison official] within 3 days of the incident.” Id. at

(IV)(A). If this does not resolve the problem, the prisoner “must submit a

‘Request to Staff’. . . stating completely but briefly the problem.” Id. at (IV)(B).

The prisoner must submit the Request to Staff within seven days of the incident.

      If the Request to Staff does not resolve the incident, or if prison officials

do not respond to it, then the prisoner begins the formal resolution process and

must submit a grievance within fifteen days of the incident or the date of the

response to the Request to Staff, “whichever is later.” Id. at (V)(A). If the prison

staff failed to respond to the Request to Staff thirty days after its submission, the

prisoner may submit the grievance without having received a response. Id. at


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(IV)(B)(5). “The ‘Request to Staff’ must have been timely submitted.” Id. at

(V)(A)(1).

      The ODOC policies permit a prisoner to circumvent the informal resolution

processes and submit a grievance without first talking to an appropriate official

and submitting a Request to Staff, provided that the grievance addresses a

sensitive or emergency matter. Id. at (VIII)(A). A prisoner must use a particular

form and write the word “emergency” at the top of the form. Id. If a prisoner

wishes to seek permission to file an untimely grievance, he must wait until the

reviewing authority has denied the initial grievance “due to the grievance not

being submitted in a timely manner.” Id. at (XII)(A). After this, the prisoner may

submit a request to file out of time to the prison director. Id. at (XII)(B). “Under

no circumstances will [a] grievance be accepted after 60 days of the incident . . .

unless ordered by a court, the director, chief medical officer, or their designee.”

Id. at (V)(A)(3).

      Mr. Smith asserts that he spoke with prison officials on September 30,

2002, within three days of the incident, and that he filed two Requests to Staff in

early October, within seven days of the incident. Mr. Smith’s two Requests to

Staff, however, did not complain about the underlying problem in this lawsuit –

prison officials’ alleged complicity in connection with the assault. Rather, they

concerned, as Mr. Smith himself stated, a request “to be moved from the hostile


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area he was in to another location . . . [and another] for the same and possible

placement in Protective Custody.” Rec. doc. 19, at 3. Even if these Requests to

Staff had related to Mr. Smith’s complaints in the instant appeal, he failed to file

a grievance within the appropriate time frame. “An inmate who begins the

grievance process but does not complete it is barred from pursuing a § 1983 claim

under PLRA for failure to exhaust his administrative remedies.” Jernigan, 304

F.3d at 1032.

       Mr. Smith additionally argues that his May 6, 2003 Request to Staff and

June 6, 2003 grievance that are labeled “out of time” should suffice for

exhaustion purposes. ODOC policies do permit a prisoner to request permission

to submit a grievance out of time, see ODOC Policy OP-090124(XII), but as the

district court noted, there is no evidence in the record that Mr. Smith followed the

appropriate procedures necessary to obtain permission from the prison director to

file out of time.

       Finally, Mr. Smith asserts that his claims were of an emergency/sensitive

nature, and that the prison officials’ failure to respond should excuse his failure

to exhaust his administrative remedies. Again, however, ODOC policies specify

that Mr. Smith had only fifteen days from the date of the incident to submit a

grievance, or sixty days if granted an extension, and his 2003 submissions were

well outside both these windows of time. Although a prison official’s failure to


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respond to a grievance can make the administrative exhaustion process

unavailable, see Jernigan, 304 F.3d at 1032, the ODOC policies provide

alternatives: as explained above, prisoners may continue to appeal within the

prison system even if they do not receive responses to their Requests to Staff or

their grievances. Thus, prison officials’ alleged failure to respond does not

excuse Mr. Smith’s failure to exhaust his administrative remedies.

B.    Interference with Exhaustion of Remedies

       In Jernigan, this circuit considered the language of the PLRA’s exhaustion

requirement and held that only “available” administrative remedies need to be

exhausted. 304 F.3d at 1032. A few unpublished cases have considered

situations where the prisoner alleges that prison officials prevented him from

effectively exhausting his administrative remedies. See, e.g., Baughman v.

Harless, 142 F. App’x 354, 358-59 (10th Cir. 2005) (unpublished) (holding that

summary judgment is inappropriate when prisoner provided affidavit evidence

that he mailed his grievance form); Johnson v. Wackenhut Corr. Corp., 130 F.

App’x 947, 951 (10th Cir. 2005) (unpublished) (affirming district court’s

dismissal for failure to exhaust administrative remedies where prisoner alleged

prison officials prevented him from doing so, “yet there is no evidence that he

ever requested a grievance form or otherwise requested assistance with the

grievance process”).


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       Mr. Smith alleges that his transfer to a new prison in October 2002

prevented him from complying with the grievance process because prison officials

did not let him take any of his property with him, including copies of previous

requests that he would need to have when filing a grievance. ODOC Policy OP-

090124(IV)(B)(5). As we explained above, however, the early October Requests

to Staff did not pertain to the underlying issues in this appeal. They concerned

Mr. Smith’s requests for transfer and protective custody, not allegations that

prison officials allowed him to be assaulted. Thus, even if prison officials

prevented Mr. Smith from appealing these Requests to Staff, these appeals would

have had no bearing on whether Mr. Smith exhausted his administrative remedies

in this case.

                               III. CONCLUSION

       Accordingly, we AFFIRM the district court’s grant of summary judgment to

the Defendants because Mr. Smith failed to exhaust his administrative remedies as

required by the PLRA.

                                       Entered for the Court,



                                       Robert H. Henry
                                       Circuit Judge




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