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

                             FOR THE TENTH CIRCUIT                       February 15, 2017
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
CHESTER LEE HUGGINS,

      Plaintiff - Appellant,

v.                                                        No. 16-1309
                                                 (D.C. No. 1:14-CV-02181-CBS)
JOHN REILLY,                                                (D. Colo.)

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, MATHESON, and McHUGH, Circuit Judges.
                  _________________________________

      Chester Lee Huggins, a Colorado state prisoner proceeding pro se, appeals the

district court’s summary judgment dismissal of his 42 U.S.C. § 1983 action.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                 I.     Background

      Mr. Huggins is an African-American inmate in the custody of the Colorado

Department of Corrections (CDOC). He was employed sewing garments in the

Colorado Correctional Industries Garment Factory at the Limon Correctional Facility

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
(LCF) until he was transferred to the Sterling Correctional Facility (SCF). Defendant

John Reilly was the production supervisor at the garment factory.

      Mr. Huggins filed a § 1983 complaint, which asserts two claims for relief

arising from his employment. The first claim alleges Mr. Reilly assigned only white

inmates to the higher paying jobs at the garment factory, in violation of the Equal

Protection Clause of the Fourteenth Amendment. The second claim alleges

Mr. Reilly retaliated against Mr. Huggins for filing a grievance regarding this

discriminatory treatment by giving him poor performance reviews and having him

transferred, in violation of the First Amendment. Mr. Huggins had submitted two

administrative grievances with similar claims before filing his complaint, one at LCF

and one at SCF, but prison officials rejected both as untimely because of missed

deadlines within CDOC’s three-step grievance procedure.

      Mr. Reilly filed a motion for summary judgment. The district court granted

the motion and dismissed the civil rights action without prejudice for failure to

exhaust administrative remedies.1 Mr. Huggins filed this timely appeal.

                                    II.   Analysis

      We review de novo the district court’s finding that Mr. Huggins failed to

exhaust his administrative remedies. See Jernigan v. Stuchell, 304 F.3d 1030, 1032

(10th Cir. 2002).




      1
        The district court’s decision was issued by a magistrate judge, sitting by
consent of the parties. See 28 U.S.C. § 636(c)(1), (3).
                                           2
      The Prison Litigation Reform Act (PLRA) provides that a prisoner cannot

bring an action “with respect to prison conditions under section 1983 . . . until such

administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see

also Jones v. Bock, 549 U.S. 199, 211 (2007) (“[E]xhaustion is mandatory under the

PLRA . . . .”). The exhaustion doctrine protects administrative agency authority and

promotes efficiency. Woodford v. Ngo, 548 U.S. 81, 89 (2006). Because the

exhaustion doctrine is an affirmative defense, Mr. Reilly “bear[s] the burden of

asserting and proving that [Mr. Huggins] did not utilize administrative remedies.”

Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011). But once Mr. Reilly proves

failure to exhaust, “the onus falls on the plaintiff to show that remedies were

unavailable to him.” Id.

      Proper exhaustion requires compliance with all of the prison’s grievance

procedures, including “deadlines and other critical procedural rules[,] because no

adjudicative system can function effectively without imposing some orderly structure

on the course of its proceedings.” Woodford, 548 U.S. at 90-91. Thus, “[a]n 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. “[S]ubstantial compliance is insufficient.” Fields v.

Okla. State Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007). In its summary

judgment order, the district court took great care to outline the requirements for

CDOC’s grievance process and explain the ways in which Mr. Huggins failed to

comply with applicable deadlines.

                                           3
      On appeal, Mr. Huggins does not contest the finding that his grievances were

untimely. Instead, he seeks to overcome the exhaustion deficiencies by arguing that

prison officials hindered him from filing the requisite paperwork and thus rendered

the grievance process unavailable to him. See Little v. Jones, 607 F.3d 1245, 1250

(10th Cir. 2010) (holding that exhaustion is not required “[w]here prison officials

prevent, thwart, or hinder a prisoner’s efforts to avail himself of an administrative

remedy”). He says, for instance, that officials gave him only two days—not five—to

complete step two of the process for his first grievance so he did not have time to

conduct necessary research. He also characterizes the grievance process as

“confusing” and “misleading,” see, e.g., Aplt. Opening Br. at 2, and complains that

for both grievances prison officials did not advise him how to correct procedural

deficiencies and resubmit his paperwork.

      Because Mr. Huggins is proceeding pro se, “we construe his pleadings

liberally.” Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003). We

make some allowances for deficiencies, such as unfamiliarity with pleading

requirements, failure to cite appropriate legal authority, and confusion of legal

theories. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.

2005). But we “cannot take on the responsibility of serving as [his] attorney in

constructing arguments and searching the record.” Id.

      Like the district court, we have little difficulty concluding that Mr. Huggins’s

claims are barred for failure to exhaust administrative remedies. He concedes he did

not comply with applicable deadlines for either grievance, and he has not presented

                                           4
any credible evidence that prison officials acted in a way that rendered his

administrative remedies unavailable. Nor does his general confusion about the

grievance process excuse his noncompliance: “[I]t is well established that ignorance

of the law, even for an incarcerated pro se petitioner, generally does not excuse

prompt filing.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (internal

quotation marks omitted); see, e.g., Hobbs v. Okla. State Penitentiary, No. 16-7022,

2016 WL 7367775, at *3 (10th Cir. Dec. 20, 2016) (applying this concept to uphold

dismissal of a § 1983 action based on a prisoner’s failure to exhaust).

       We affirm the dismissal for substantially the same reasons stated by the district

court in its thorough, well-reasoned order. With respect to the first grievance, in

addition to the failure to comply with applicable deadlines, we add that Mr. Huggins

has not established two days was insufficient for him to complete the step-two

grievance form. That form resembles the step-one form and requires only a short,

one-paragraph statement of the basis for the prisoner’s grievance and the requested

remedy. See R., Vol. II at 313-14. Because we affirm based on failure to exhaust

administrative remedies, we need not consider the parties’ arguments about the

merits of the underlying § 1983 claims.

       Mr. Huggins’s motion to proceed in forma pauperis is denied as moot. The

relevant statute, 28 U.S.C. § 1915(a)(1), does not permit litigants to avoid payment of

filing and docketing fees, only prepayment of those fees. Since we have reached the

merits of this matter, prepayment of fees is no longer an issue. We remind Mr. Huggins



                                             5
of his obligation to continue making partial payment until his appellate filing fee is

paid in full.


                                            Entered for the Court


                                            Carolyn B. McHugh
                                            Circuit Judge




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