                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                       February 24, 2006
                    UNITED STATES COURT OF APPEALS
                                                                      Elisabeth A. Shumaker
                           FOR THE TENTH CIRCUIT                         Clerk of Court

    PREVIN E. TAUER,

               Plaintiff-Appellant,

     v.                                                No. 05-3196
                                                (D.C. No. 04-CV-3224-GTV)
    ROGER WERHOLTZ, Secretary of                          (D. Kan.)
    Corrections; WILLIAM L.
    CUMMINGS, Deputy Secretary of
    Corrections; MICHAEL A. NELSON,
    Warden (Retired); DON E. THOMAS;
    K. LUMAN, Deputy Wardens;
    D. ZAMBO, Security Staff
    (Deceased); L. R. MOORE; R. LAIR,
    Security Staff; J. SPIKER; DEBBIE D.
    BRATTON, Unit Team Managers;
    G. MISTER, Correctional Counselor;
    T. WEBER; J. CLARK; R. ROMEY;
    KATHIE HARRIS, Clinical Staff,

               Defendants-Appellees.


                           ORDER AND JUDGMENT *


Before HENRY, McKAY, and MURPHY, 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 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not binding precedent, except under the doctrines of law of the case, res judicata,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. 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.
      Plaintiff Previn E. Tauer, a Kansas state prisoner proceeding pro se,

appeals the district court’s dismissal of his civil-rights complaint filed under

42 U.S.C. § 1983. He also challenges the order denying his post-judgment

motion, filed under Fed. R. Civ. P. 59(e). We affirm in part, reverse in part,

and remand for further proceedings.

      Mr. Tauer’s complaint was based on his placement in administrative

segregation from October 1997 until July 29, 2002. On June 14, 2004, nearly two

years after his release into the general prison population, he filed an

administrative grievance claiming his confinement in administrative segregation

had violated his due process rights. The applicable regulation requires a

grievance to “be filed within 15 days from the date of the discovery of the event

giving rise to the grievance,” and provides that “[n]o grievance, regardless of

time of discovery, shall be filed later than one year after the event.” Kan. Admin.

Regs. § 44-15-101b. Prison officials denied his grievance as untimely.

      Before any of the defendants were served with process, the district court

dismissed the case. The court ruled that the June 2004 grievance was untimely;

therefore, Mr. Tauer failed to comply with the administrative exhaustion

requirements of the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a)

(PLRA). Mr. Tauer then filed a motion under Rule 59(e) to alter or amend the

judgment, to which he attached a copy of an administrative grievance he filed on

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April 2, 2002, while he was still housed in administrative segregation, alleging

that his placement there violated his rights. He conceded that he did not exhaust

fully the prison grievance process with respect to the 2002 grievance, but he

asserted that a prison official fraudulently convinced him not to appeal the initial

denial. In denying the post-judgment motion, the district court again ruled that

the June 2004 grievance did not satisfy the exhaustion requirement, but did not

mention the April 2002 grievance.

      On appeal, Mr. Tauer argues (1) the district court was without authority to

dismiss his case sua sponte, (2) the administrative exhaustion requirement is not

jurisdictional so his failure to comply with it cannot foreclose his federal lawsuit,

(3) the time limit for filing an administrative grievance impermissibly conflicts

with the statute of limitations for filing suit, (4) the prison grievance filing

requirements are not authorized by statute, (5) the district court erroneously based

its dismissal on the doctrine of laches, and (6) he exhausted fully his

administrative remedies relative to the June 2004 grievance. He also claims that

the district court erred in denying his Rule 59(e) motion, and he asserts that his

failure to exhaust administrative remedies as to his 2002 grievance should be

excused due to equitable estoppel.

                      Claims Pertaining to the 2004 Grievance

      “Our review of a dismissal under the PLRA for failure to exhaust


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administrative remedies is de novo.” Ross v. County of Bernalillo, 365 F.3d

1181, 1185 (10th Cir. 2004).

      Addressing Mr. Tauer’s arguments in order, we first hold that the PLRA

authorized the district court to dismiss the complaint sua sponte after it

determined that Mr. Tauer failed to show that he had exhausted fully the prison

grievance procedure. See Simmat v. United States Bureau of Prisons, 413 F.3d

1225, 1238 (10th Cir. 2005); see also 28 U.S.C. § 1915A (directing district court

to screen prisoner cases early and dismiss defective claims). Second, Mr. Tauer is

correct that the administrative-exhaustion requirement is not jurisdictional; failure

to exhaust does not divest this court of the power to adjudicate the claims. Steele

v. Fed. Bureau of Prisons, 355 F.3d 1204, 1208 (10th Cir. 2003). The exhaustion

requirement is mandatory, however, and a prisoner’s “complaint that fails to

allege the requisite exhaustion of remedies is tantamount to one that fails to state

a claim upon which relief may be granted.” Id. at 1209-10 (quotation omitted);

accord Simmat, 413 F.3d at 1238.

      Next, Mr. Tauer contends that the deadline for filing a prison grievance

(fifteen days from the date of discovery, but never longer than one year)

impermissibly conflicts with the statute of limitations for filing suit under § 1983

and Kansas state law. Mr. Tauer seeks to invoke the two-year limitations periods

provided for filing these actions. See Gragg v. McKune, 16 P.3d 311, 313-14


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(Kan. Ct. App. 2000) (holding Kansas law provides two-year statute of limitations

for § 1983 actions, measured from date cause of action arose); see also Price v.

Philpot, 420 F.3d 1158, 1162 (10th Cir. 2005) (applying applicable state statute of

limitations to § 1983 action); Kan. Stat. Ann. § 60-513(a)(3) & (4) (supplying

two-year limitations for actions based on fraud or injury to the rights of another).

Mr. Tauer maintains that as long as he filed his grievance within two years after

his constitutional rights were denied, federal litigation is not foreclosed. This

court has specifically rejected this position. Ross, 365 F.3d at 1186 (holding

time-barred grievance is not considered exhausted).

      Mr. Tauer also challenges the regulation setting the time limit for filing

grievances, Kan. Admin. Regs. § 44-15-101b, asserting that it is not authorized

by statute. To the contrary, a Kansas statute authorizes the “secretary [of

corrections] [to] adopt rules and regulations for the direction and government

of . . . correctional institutions. . . .” Kan. Stat. Ann. § 75-5251. Moreover,

Kan. Stat. Ann. § 75-52,138 requires an inmate to exhaust prison grievance

remedies before filing a civil action. Consequently, we conclude that the time

limits for filing a prison grievance are duly authorized.

      Mr. Tauer’s laches argument is based on “an appearance that [he] had

failed to comply with the [prison] administrative grievance regulations.”

Aplt. Br. at 6-7. We reject this claim because Mr. Tauer concedes that his 2004


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grievance was filed outside the time limits imposed by the applicable regulation.

Furthermore, the district court’s orders do not apply the doctrine of laches.

      Finally, Mr. Tauer asserts that he exhausted fully his administrative

remedies relative to the 2004 grievance by appealing the ruling that it was

time-barred as far as the procedures allowed. Advancing the position taken by the

Sixth and Ninth Circuits, he maintains that even a time-barred grievance satisfies

the PLRA. See Ngo v. Woodford, 403 F.3d 620, 631 (9th Cir.) (holding prisoner’s

time-barred grievance satisfied PLRA’s exhaustion requirement when prisoner

completed highest level of appeal available), cert. granted, 126 S. Ct. 647 (2005);

Thomas v. Woolum, 337 F.3d 720, 726-27 (6th Cir. 2003) (same). In this circuit,

however, a time-barred grievance is not considered exhausted. Ross, 365 F.3d

at 1186; see id. at 1185-86 & n.7 (rejecting holding and rationale of Thomas).

Accordingly, we affirm the district court’s dismissal of Mr. Tauer’s claims based

on the 2004 grievance.

                         Rule 59(e) Motion – 2002 Grievance

      Turning to the disposition of the Rule 59(e) motion, we review a district

court’s ruling on a post-judgment motion for an abuse of discretion. See

McNickle v. Bankers Life & Cas. Co., 888 F.2d 678, 680 (10th Cir. 1989)

(reviewing a Rule 60(a) motion). A district court abuses its discretion where it

“fails even to consider either an applicable legal standard or the facts upon which


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the exercise of its discretionary judgment is based.” Id.; accord Ohlander v.

Larson, 114 F.3d 1531, 1537 (10th Cir. 1997) (holding failure to exercise

discretion is abuse of discretion).

      We conclude that the district court abused its discretion in denying

Mr. Tauer’s Rule 59(e) motion because it did not consider the basis for the

motion – the April 2002 grievance. Under the circumstances of a sua sponte

dismissal premised on the requirements of 28 U.S.C. § 1915A, Mr. Tauer did not

have the opportunity to enlist the April 2002 administrative grievance until after

the dismissal indicating that the July 2004 grievance was too late. That

opportunity presented itself with a Rule 59(e) motion. Accordingly, we remand

for the district court to consider the grounds for the Rule 59(e) motion.

      We recognize that Mr. Tauer concedes that he did not appeal the initial

denial of the April 2002 grievance, and therefore did not exhaust the prison

grievance procedures. He claims a prison official convinced him that such an

appeal was not permitted. Whether Mr. Tauer is entitled to rely on an estoppel

theory is a question this circuit has not decided. See Jernigan v. Stuchell,

304 F.3d 1030, 1033 (10th Cir. 2002) (declining to consider plaintiff’s estoppel

argument because he could not show detrimental reliance on prison officials).

We do not resolve it here, however, because the underlying facts have not

been developed.


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                                    Conclusion

      The district court granted Mr. Tauer leave to proceed on appeal without

prepayment of costs and fees. He is reminded that he is obligated to continue

making partial payments until the entire fee has been paid.

      We AFFIRM the district court’s order dismissing the 2004 grievance. We

REVERSE the order denying the Rule 59(e) motion. Accordingly, we VACATE

the judgment and REMAND for the district court to revisit the Rule 59(e) motion.


                                                   Entered for the Court



                                                   Michael R. Murphy
                                                   Circuit Judge




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