                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                        April 24, 2015

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
MYCHEL PUSHA,

             Plaintiff-Appellant,

v.                                                        No. 14-3083
                                                 (D.C. No. 5:14-CV-03010-SAC)
LT. MYERS, Correctional                                     (D. Kan.)
Officer/Lieutenant, Lansing Correctional
Facility; REX PRYOR, Warden, Lansing
Correctional Facility,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before GORSUCH, O’BRIEN, and PHILLIPS, Circuit Judges.


      Mychel Pusha, a state prisoner, filed a pro se 42 U.S.C. § 1983 action against

Kansas prison officials from the Lansing Correctional Facility, alleging racial

discrimination. As required by 28 U.S.C. § 1915(A) the district judge screened the

complaint. He gave Pusha notice of the deficiencies in his complaint, including his


*
      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 Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
failure to exhaust his administrative remedies, and afforded him time to take curative

action. When Pusha failed to do so the judge dismissed the complaint without

prejudice for failure to exhaust. He appeals to this court for relief from the dismissal,

but it was proper. We affirm.1

      Pusha filed his pro se complaint on January 13, 2014. According to its

allegations, he submitted a grievance on December 12, 2013, but the prison warden

had failed to take any action. On January 14, 2014, the district judge required Pusha

to show cause why his complaint should not be dismissed based on his failure to

exhaust administrative remedies as required by 42 U.S.C. § 1997e(a), which

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.

The judge cited Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007)

(permitting district court to dismiss a prisoner complaint sua sponte for failure to

state a claim if it is clear from the face of the complaint the prisoner has not

exhausted his administrative remedies). The order also described the administrative

grievance procedure available to Kansas prisoners, which includes submission of the

grievance first to a unit team member, then to the warden, and finally to the Secretary

of Corrections. See Kan. Admin. Regs. § 44-15-101(d)(1)-(3).


1
      Our jurisdiction derives from 28 U.S.C. § 1291.


                                           -2-
      Pusha initially responded to the show-cause order with a letter dated January

19, 2014, to which he attached a copy of the prison warden’s December 27, 2013,

response to his grievance. As the warden’s letter explained, Pusha’s grievance had

been received and investigated, and “[n]o further action [was] deemed necessary.”

R., Vol. 1 at 25. Pusha told the judge, “As you have received this letter, I have also

written the Secretary of Corrections, and sent all of the pertaining information, of the

grievance.” Id. at 23. On February 5, Pusha sent an additional letter to the court,

attaching a letter from the Secretary of Corrections dated January 24, 2014. It said

his grievance form “reflects no evidence that you filed your grievance with the

[warden] before pursuing an appeal with the Secretary.” Id. at 33. It also advised

Pusha that his grievance would be forwarded to the warden, per Kan. Admin. Regs.

§ 44-15-102(c)(4), which states the procedure to be followed when a grievance is

submitted to the Secretary without prior action by the warden.

      The district court dismissed Pusha’s § 1983 complaint without prejudice,

concluding his filings failed to show he properly exhausted his administrative

remedies before commencing this action. Pusha appeals from the dismissal,

contending his submissions establish commencement and completion of the

applicable grievance process before his complaint was filed with the district court.

Contrary to his arguments and as we explain, dismissal of his complaint without

prejudice was entirely proper under the process outlined in Aquilar-Avellaveda,

478 F.3d at 1225-26.


                                          -3-
      “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). Failure to exhaust under § 1997e(a) is an affirmative defense, and prisoners

are not required to plead exhaustion in their complaints. Aquilar-Avellaveda,

478 F.3d at 1225. But if a complaint makes “affirmative but not conclusive

statements” regarding the prisoner’s exhaustion of administrative remedies, a district

court may raise the exhaustion issue sua sponte and seek additional information from

the prisoner. Id. (stating “a district court cannot dismiss the complaint without first

giving the inmate an opportunity to address the issue” (internal quotation marks

omitted)). The district court appropriately followed that procedure in this case.

      “[P]roper exhaustion of administrative remedies . . . means using all steps that

the agency holds out, and doing so properly (so that the agency addresses the issues

on the merits).” Woodford v. Ngo, 548 U.S. 81, 90 (2006) (internal quotation marks

omitted). Moreover, an inmate must complete the grievance process before filing his

complaint. See 42 U.S.C. § 1997e(a) (stating “[n]o action shall be brought . . . until

such administrative remedies as are available are exhausted”); see also Jernigan,

304 F.3d at 1032 (“An inmate who begins the grievance process but does not

complete it is barred from pursuing a § 1983 claim under [§ 1997e(a)] for failure to

exhaust his administrative remedies.”).

      The grievance process applicable to Kansas prisoners includes an appeal to the

Secretary of Corrections. Kan. Admin. Regs. § 44-15-102(c)(1). Importantly, it


                                          -4-
gives the Secretary “20 working days . . . to return the grievance report form to the

inmate with an answer. The answer shall include findings of fact, conclusions made,

and actions taken.” Id. § 44-15-102(c)(3). Thus, the Kansas grievance process

contemplates both an appeal in proper form to and a decision by the Secretary.

Indeed, one of the purposes of the exhaustion requirement is to “allow[] a prison to

address complaints about the program it administers before being subjected to suit.”

Jones v. Bock, 549 U.S. 199, 219 (2007).

       Pusha’s submissions in response to the district court’s show-cause order

confirmed what was apparent from the allegations in his complaint: he had not

completed the applicable grievance process before he filed his complaint on January

13, 2014. His filings did not clearly indicate whether he had filed a proper appeal

with the Secretary of Corrections before that date.2 But the Secretary’s January 24

letter demonstrated that, as of January 13, Pusha had received no response to his

appeal to the Secretary, much less a decision on the merits. Moreover, the

Secretary’s response was not a merits decision, it rejected the putative appeal on

procedural grounds and we do not know whether it amounted to a final decision.

      On appeal, Pusha focuses on the Secretary’s statement in the January 24 letter

that his grievance appeal failed to reflect any evidence of his grievance having been
2
       In his notice of appeal, Pusha asserted that he submitted his grievance to the
Secretary of Corrections on January 19, 2014, which was six days after he filed his
complaint. R., Vol. 1 at 41. But because that information was not before the district
court, we do not rely on it in affirming the dismissal for failure to exhaust
administrative remedies.


                                         -5-
filed with the warden. He argues dismissal of his complaint was improper because

his filings in the district court showed, contrary to the Secretary’s conclusion, that he

had filed a grievance with the warden. But his argument misses the mark for

two reasons: first, he ignores his failure to complete the grievance process by

awaiting the Secretary’s answer to his grievance, as defined in Kan. Admin. Regs.

§ 44-15-102(c)(3), before filing his complaint in the district court; second, and more

important, exhaustion requires a final decision by the Secretary either on the merits

or imposing a final procedural bar to further process. The Secretary’s decision did

neither. Since administrative remedies had not been exhausted when the complaint

was filed dismissal was proper.3

      Pusha’s request to proceed on appeal in forma pauperis or ifp is denied as

moot. The relevant statute, 28 U.S.C. § 1915(a), does not permit litigants to avoid

payment of fees; only prepayment of fees may be excused. Since we have reached

the merits of this appeal, prepayment of fees is no longer an issue. Pusha is,




3
       The record does not reveal whether Pusha timely completed the Kansas
grievance process after he filed his complaint. Substantial compliance with a
grievance process is insufficient to satisfy the exhaustion requirement. Jernigan,
304 F.3d at 1032. To properly complete the process, a prisoner must correct any
deficiencies in his submissions. Id. (holding prisoner failed to exhaust administrative
remedies when he filed suit rather than attempting to cure a deficiency in his
grievance submission). Pusha’s “it should not matter” argument is unavailing. His
obstinate disregard of clear regulations may have left him without an opportunity to
cure his procedural problem (not including the Warden’s decision in his appeal
papers) with the Secretary.


                                          -6-
nevertheless, required to pay all filing and docketing fees. Payment must be made to

the Clerk of the District Court.

      Affirmed.

                                              Entered for the Court


                                              Terrence L. O’Brien
                                              Circuit Judge




                                        -7-
