                                                             F I L E D
                                                      United States Court of Appeals
                                                              Tenth Circuit
                UNITED STATES COURT OF APPEALS
                                                             June 24, 2005
                            TENTH CIRCUIT
                                                           PATRICK FISHER
                                                                  Clerk

LEONARD BALDAUF,

     Plaintiff-Appellant,
v.                                           No. 04-1402
FRANCIS GAROUTTE, EUGENE              (D.C. No. 03 RB 1104 (CBS))
ATHERTON; JOHN STONER;                          (D.Colo.)
STEVE SCHUH; CATHY SLACK;
VICKY RIDDLE; MIKE
ARELLANO; ED GILLESPIE;
DONALD MCCALL; GLORIA
BREIDENBACH; GARY PITTMAN;
MIKE WEBB; GERALD KNAPIC;
JOSEPH WILLIAM SIMS; DANIEL
GALLAGHER; DAVE LINAM;
KARRY PAINE; WILLIAM BEARD;
JAMES HALSTEAD; H. BENNETT;
CHARLES SHANNON; TOM
MARTIN; ELIAS RINCON; RON
LEYBA; JOHN HADLEY; ROBERT
STOCKMAN; GABE HERNANDEZ;
SEAN PRUITT; PAM KING; MATT
GOODWIN; JERRY AWMILLER;
RHONDA CORETTI; TERESA
REYNOLDS; DINEEN CRANDALL;
RICHARD FLORES; WESS
LEHMAN; JULIAN PADILLA;
CHRIS STARCER; GALE GRAHAM;
CHRISTIAN SNELSON; DAVID
SCHLOTTERER; WERMER;
SCAVARDA; LUSK; BELL; CAREY;
DECLUSIN; CORTEZ; E. MILLER;
JOE ORTIZ; LARRY REID; MORA;
RICHARD WRIGHT; DAN FOSTER;
THOMAS; AVANT; JAMES
MICHAUD; DON LAWSON;
 ZANDER; OWENS; PHILIPS; BOB
 FLORES; AMY HOUGH; BRAD
 ROCKWELL; CATHY HOLST,

          Defendants-Appellees.


                           ORDER AND JUDGMENT            *




Before BRISCOE, LUCERO,           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.

      Leonard Baldauf, a prisoner at the Arkansas Valley Correctional Facility,

appearing pro se, appeals the district court’s dismissal of his 42 U.S.C. § 1983

action as well as the denial of motions for interim class counsel, default

judgment, and an order to cure deficiency. We exercise jurisdiction pursuant to

28 U.S.C. § 1291, affirm in part, reverse in part, and remand.




      *
       This order and judgment is not binding precedent, except under the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.


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                                          I.

      Baldauf filed his civil rights complaint against sixty-five named Colorado

Department of Corrections (CDOC) employees on June 17, 2003. The incidents

alleged in the complaint appear to have occurred while Baldauf was housed at the

Colorado State Penitentiary and the San Carlos Correctional Facility. The

magistrate judge interpreted the complaint as raising ten issues: (1) six of the

defendants are allegedly responsible for unnamed inmates being placed in

conditions of confinement that exacerbate mental disorders in violation of the

Eighth Amendment; (2) forty-three defendants allegedly violated the First

Amendment by retaliating against Baldauf for filing grievances; (3) fourteen

defendants allegedly infringed upon the due process protections afforded by the

Fourteenth Amendment by keeping Baldauf and other inmates in administrative

segregation without meaningful review and such extended segregation constitutes

cruel and unusual punishment in violation of the Eighth Amendment; (4) four

defendants allegedly violated the Eighth Amendment by failing to provide

medical care for an injury to Baldauf’s arm sustained in November 2001; (5) five

defendants allegedly violated the Eighth Amendment by using or allowing CDOC

employees to exploit intake cells to inflict corporal punishment; (6) nine

defendants allegedly violated Baldauf’s First Amendment rights by improperly

limiting the number of books allowed in administrative segregation and


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confiscating documents from Baldauf’s “legal mail”; (7) twenty defendants

allegedly violated Baldauf’s First Amendment rights by failing to provide

grievance forms; (8) on or about March 15, 2002, thirteen defendants allegedly

violated Baldauf’s Eighth Amendment rights through the use of excessive force

and deliberate indifference to conditions inflicted upon him while he was in the

observation or intake cell; (9) eighteen defendants allegedly violated the

Fourteenth Amendment by wrongfully depriving Baldauf of books and papers and

by improperly withdrawing funds from Baldauf’s inmate account to pay for a

broken television; and (10) seven defendants allegedly denied mental health

treatment to unnamed defendants. Attached to the complaint were copies of

letters from the grievance counselor indicating Baldauf had exhausted his

administrative remedies as to portions of some of his claims, but not all.

      Defendants moved to dismiss some of the claims for failure to exhaust and

others for failure to state a claim, mootness, qualified immunity, and failure to

allege personal participation. The magistrate judge recommended that Baldauf’s

complaint be dismissed entirely without prejudice for failure to exhaust under 42

U.S.C. § 1997e(a). Baldauf filed objections to the magistrate judge’s report and

defendants filed a response to those objections. On September 3, 2004, the

district court adopted the magistrate judge’s recommendation, granted defendants’

motions to dismiss, and dismissed Baldauf’s complaint without prejudice for


                                          4
failure to exhaust administrative remedies.

      On September 9, 2004, Baldauf filed a motion for an order to cure

deficiency that included several documents in an effort to show he had exhausted

all administrative remedies. On November 4, 2004, the magistrate judge issued a

report and recommendation that Baldauf’s motion for an order to cure deficiency

be denied for three reasons: (1) Baldauf’s notice of appeal divested the district

court of jurisdiction over the matter; (2) because the matter had been dismissed,

Baldauf’s request that the court consider additional documents was untimely; and

(3) the additional documents Baldauf provided were insufficient to show he had

exhausted his administrative remedies. The district court adopted the magistrate

judge’s recommendations on February 17, 2005 and denied the motion for order

to cure deficiency.

      Baldauf now appeals.

                                         II.

                                 Failure to Exhaust

      We review de novo the district court’s dismissal for failure to exhaust

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

2002). The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), requires

inmates to exhaust “available” administrative remedies prior to filing an action

under § 1983, even where the “available” remedies appear futile at providing the


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kind of remedy sought. Jernigan, 304 F.3d at 1032. Administrative review by

correction officials is intended “to reduce the quantity and improve the quality of

prisoner suits” by “filter[ing] out some frivolous claims” and, at a minimum,

“clarif[ying] the contours of the controversy.” Porter v. Nussle, 534 U.S. 516,

524-25 (2002). In a § 1983 action, the burden is on an inmate to sufficiently plead

exhaustion of grievance proceedings, which includes supplying supporting

documentation on exhaustion of prison grievance proceedings, or in the absence

of documentation, describing with specificity the administrative proceedings and

the outcome. Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1209-10 (10th

Cir.2003).

      With these standards in mind, we turn to the record on appeal. Baldauf

alleges that the district court erred in dismissing his action for failure to exhaust.

First, Baldauf contends that whether he exhausted his administrative remedies is

unclear and requires further inquiry. Aplt. Br. at 3A (citing Steele, 355 F.3d at

1211). Second, he contends the district court’s decision rested on the CDOC’s

erroneous conclusion that some of his grievances were “defaulted.” Id. at 3B.

Third, he contends the district court erred in finding that he had failed to exhaust

when, in fact, the grievance process was unavailable to him due to actual and

threatened adverse actions by the CDOC. Id. at 3B-3C.

      The record on appeal is consistent with the findings of the magistrate judge


                                           6
as adopted by the district court. Documents from the CDOC Step III Grievance

Officer that accompany Baldauf’s complaint show that he exhausted the grievance

process regarding: (1) television repair charges (letters dated March 26, 2002 and

April 2, 2002); (2) unspecified expunged records (letter dated April 2, 2002); (3)

a confiscated magazine (letter dated May 9, 2002); (4) unspecified antagonism by

Sgt. Bennett (letter dated May 24, 2002); (5) prison conditions including

treatment while on suicide watch (letter dated May 24, 2002); (6) resolution of a

dispute with the mail room over a book received by Baldauf (letter dated June 6,

2002); (7) property inventory dispute over books (letter dated June 6, 2002); (8)

mail overcharges (letter dated July 23, 2002); and (9) Rhonda Corretti being

“ordered to do her job” (letter dated October 10, 2002). Other letters from the

Grievance Officer specifically state that Baldauf has not exhausted his

administrative remedies regarding other claims because he failed to comply with

CDOC grievance procedures (letters dated July 2, 2001, May 22, 2002, June 27,

2002, January 24, 2003, and an undated letter).

      We agree with the magistrate judge that it is difficult to associate these

grievances with particular claims in Baldauf’s complaint and it is clear that these

records do not establish that Baldauf has exhausted administrative remedies as to

all claims. However, the magistrate judge and the district court failed to address

Baldauf’s claim seven in his complaint in which he alleges that prison officials


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thwarted his access to the grievance procedures. These allegations are

sufficiently detailed and serious to warrant our reversal of the dismissal and

remand for further consideration.

      The PLRA 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)

(emphasis added). Other circuits have held that administrative remedies are not

“available” when prison officials refuse to provide prisoners with grievance

forms. See Miller v. Norris, 247 F.3d 736, 738, 740 (8th Cir .2001) (“We believe

that a remedy that prison officials prevent a prisoner from ‘utiliz[ing]’ is not an

‘available’ remedy under § 1997e(a).”), cited with approval in Johnson v.

Wackenhut Corrections Corp., No. 04-6245, 2005 WL 1112089, *2 (10th Cir.

May 11, 2005); Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003) (failure to

exhaust available remedies is excused if there was a failure to provide grievance

forms), cited with approval in Hoover v. West, No. 03-7106, 2004 WL 309338, *3

(10th Cir. Feb. 19, 2004); Gonzales-Liranza v. Naranjo, 2003 WL 22255886, *3

(10th Cir. 2003); Kendall v. Kittles, No. 03 Civ. 628 GEL, 2003 WL 22127135,

*5 (S.D.N.Y. 2003) (“Dismissal for failure to exhaust administrative remedies is

not appropriate where the plaintiff sufficiently alleges that he attempted to pursue


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internal remedies and that prison officials ... refused to provide him with the

means to file a grievance.”); cf. Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th

Cir. 2002) (“[T]he failure to respond to a grievance within the time limits

contained in the grievance policy renders an administrative remedy unavailable.”).

Compare Watley v. Goodman, No. 01-3860, 2002 WL 370015, *1 (6th Cir. Mar.

6, 2002) (dismissal proper because prisoner was refused grievance forms because

he did not follow procedure for requesting such forms and did receive forms when

he followed proper procedure); Jones v. Smith, 266 F.3d 399 (6th Cir. 2001)

(dismissal for failure to exhaust was proper because plaintiff failed to allege that

the prison official who refused to provide a grievance form was the only source of

those forms or that plaintiff made other attempts to obtain a form or file a

grievance without a form). The reasoning in these cases is persuasive: the plain

meaning of “available” indicates that if a prisoner is hindered from utilizing the

grievance procedure, then that grievance procedure is not available.

      Claim seven of Baldauf’s complaint alleges that:

             •      Several grievances Baldauf filed were routed to
                    Defendant Garoutte rather than the Step III
                    Grievance officer he intended and several prior
                    requests “vanished.” ROA, Doc. 3 at 24.
             •      Baldauf was denied forms and hand-written
                    grievances that he submitted were not processed
                    by Defendants Garoutte and Riddle. Id.
             •      Baldauf wrote to Defendants Wright, Schuh, and
                    Atherton about the denial of forms but still did not
                    receive any forms. Id.

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             •      Baldauf’s mother complained to Atherton and
                    called Arellano about the denial of grievance
                    forms, but he still received no forms. Id.
             •      Defendant Miller refused to supply forms. Id.
                    Miller withheld forms unless Baldauf provided
                    documentation of informal resolution attempts
                    despite the fact that no such requirement existed.
                    Id.
             •      Defendant Gillespie refused or ignored all claims
                    not on forms, despite being told by Baldauf that
                    forms were unavailable. Id.
             •      Defendants Wright, Slack, Webb, Breidenbach,
                    Lehman, Linam, Pruett, Leyba, Graham, Reid,
                    McCall, and Ortiz failed to answer Baldauf’s kites
                    or letters. Id.
             •      Defendant Garoutte did not return a Step II
                    response for 45 days despite Baldauf’s requests
                    and Gillespie denied the grievance for lack of a
                    Step II response. Id.
             •      Other forms are freely distributed to prisoners
                    each Sunday, but grievance forms are only
                    available from case managers who “interrogate”
                    prisoners before issuing the grievance forms. Id.

      Defendants respond that they dispute these allegations, but argue that even

if they are true, they are insufficient to support a constitutional violation. Aplee.

Br. at 28-29. We disagree. Baldauf’s allegations are sufficient to raise an

inference that Baldauf was prevented from utilizing grievance procedures because

he was denied grievance forms and handwritten grievances were not processed.

Contrary to defendants’ assertion, the grievance forms in the record are not

inconsistent with Baldauf’s claim that he was denied forms after November, 2002.

These allegations raise an inference that Baldauf exhausted his “available”


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remedies. We do not decide, however, that Baldauf has, in fact, exhausted his

remedies as is required by § 1997e(a). We reverse the district court’s dismissal

for failure to exhaust and remand for further proceedings on the question of

exhaustion and whether Baldauf was prevented from exhausting his claims.

      Because we reverse the district court’s dismissal for failure to exhaust, we

need not address Baldauf’s remaining grounds for appeal regarding his failure to

exhaust.

                             Motion to Cure Deficiency

      Because we reverse and remand for further consideration of the exhaustion

issue, Baldauf’s appeal of the denial of the motion to cure deficiency is moot.

                  Default Judgment Against Bennet and Garoutte

      Baldauf filed an “Application for Default Judgment” against Defendant

Garoutte, ROA, Doc. 90, which the district court denied. Baldauf appeals that

denial and adds Defendant Bennett to the request. Baldauf claims both

defendants were served, but have failed to respond. The record indicates that

neither Bennett nor Garoutte were served because they no longer work for the

CDOC. In order to enter a default judgment, a court must have jurisdiction over

the parties, which requires that the parties be served with process. 10A Wright,

Miller & Kane, Federal Practice & Procedure: Civil 3d § 2682 (1998). Because

these individuals have not been served, the district court had no jurisdiction over


                                         11
these parties and was correct in denying default judgment. The denial of the

application for default judgment is affirmed.

                       Appointment of Interim Class Counsel

      Baldauf moved for appointment of interim class counsel pursuant to Fed. R.

Civ. P. 23(g)(2)(A) in order to represent the class of prisoners identified in his

complaint. The magistrate judge declined to treat Baldauf’s action as a class

action and denied Baldauf’s request for counsel.

      “We review a district court’s refusal to appoint counsel for an indigent

prisoner in a civil case for an abuse of discretion.” Hill v. SmithKline Beecham

Corp., 393 F.3d 1111, 1115 (10th Cir. 2004). The plaintiff has the burden to

show that appointment of counsel is warranted. Id. We will reverse the

magistrate court’s ruling “[o]nly in those extreme cases where the lack of counsel

results in fundamental unfairness.” Id. Because Baldauf does not challenge the

magistrate court’s refusal to treat his action as a class action, the request pursuant

to Rule 23(g)(2)(A) for interim class counsel seems moot. However, the

magistrate judge construed Baldauf’s request as a general request for counsel, and

we address Baldauf’s appeal from that perspective.

      In considering whether to appoint counsel, the magistrate court properly

considered “the merits of the litigant’s claims, the nature of the factual issues

raised in the claims, the litigant’s ability to present his claims, and the complexity


                                          12
of the legal issues raised by the claims.” Rucks v. Boergermann, 57 F.3d 978,

979 (10th Cir. 1995) (quotation marks and citation omitted). Lack of counsel in

this case has not resulted in fundamental unfairness, Hill, 393 F.3d at 1115;

Baldauf has adequately represented himself in this action and benefits from the

liberal construction of pleadings and motions afforded pro se litigants, Haines v.

Kerner, 404 U.S. 519, 520-21 (1972). The magistrate court did not abuse its

discretion in denying Baldauf’s motion for counsel. Therefore, we affirm the

denial of the motion for counsel.

                         Additional Grounds for Dismissal

       Defendants offer several grounds for dismissal in addition to failure to

exhaust; all were raised below but were not addressed by the magistrate or district

courts. While we may consider any ground properly raised below as a basis for

affirmance of the district court’s dismissal, see Whitley v. Albers, 475 U.S. 312,

326 (1986); Hutchinson v. Pfeil, 208 F.3d 1180, 1186 (10th Cir. 2000), we

decline to do so here without consideration of defendants’ arguments by the

district court.

       We REVERSE the district court’s grant of defendants’ motions to dismiss

for failure to exhaust and REMAND for further proceedings. We AFFIRM the

district court’s denial of Baldauf’s application for default judgment, the denial of

Baldauf’s motion for order to cure deficiency, and the denial of Baldauf’s motion


                                         13
for appointment of counsel.


                                   Entered for the Court


                                   Mary Beck Briscoe
                                   Circuit Judge




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