                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            DEC 8 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ROGER BASHAM,

                Plaintiff-Appellant,

    v.                                                   No. 98-8013
                                                     (D.C. No. 97-CV-134)
    JUDY UPHOFF, Director of the                           (D. Wyo.)
    Wyoming Department of Corrections;
    DAWNA ERICKSON, Director of
    Education/Law Librarian for the
    Wyoming State Penitentiary,
    individually and under color of law,

                Defendants-Appellees.




                            ORDER AND JUDGMENT            *




Before BALDOCK , EBEL , 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      This order and judgment is not binding precedent, except under the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.
this appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

       Plaintiff-Appellant Roger Basham, appearing pro se and in forma pauperis,

appeals from the district court’s dismissal of his civil rights complaint brought

under 42 U.S.C. § 1983. The district court dismissed plaintiff’s complaint sua

sponte pursuant to 28 U.S.C. § 1915(e)(2)(B), holding that the complaint was

legally frivolous, that it failed to state a claim upon which relief may be granted,

and that plaintiff had failed to exhaust his administrative remedies as required by

42 U.S.C. § 1997e(a). R., Doc. 26 at 2. Our jurisdiction arises under 28 U.S.C.

§ 1291, and we reverse and remand for further proceedings.

       Plaintiff is a Wyoming state inmate confined in the Arizona State Prison

pursuant to an interstate compact. His federal complaint alleges that the

Wyoming defendants, who maintain responsibility for providing inmates with

legal assistance and materials, violated his constitutional right to access to the

courts by failing to provide him with adequate Wyoming legal materials or

assistance to pursue an attack upon his sentence in state court. Although the case

was filed in federal district court in May 1997, plaintiff never successfully

effected service upon the State. The district court granted IFP status in January

1998 and then dismissed the case two weeks later before serving the State.      See

28 U.S.C. § 1915(d) (requiring district court to serve process);   McGore v.


                                            -2-
Wrigglesworth , 114 F.3d 601, 604-05, 608, 612 (6th         Cir. 1997) (stating that sua

sponte screening pursuant to § 1915(e)(2) or § 1915A must occur “before service

of process is made on the opposing parties”). We do not have the benefit,

therefore, of the State’s response to this appeal.


                                             I.

       A dismissal for failure to state a claim is subject to de novo review.        See

Kidd v. Taos Ski Valley, Inc.    , 88 F.3d 848, 854 (10th Cir. 1996) (standard under

Fed. R. Civ. P. 12(b)(6));   McGore , 114 F.3d at 604 (referring to § 1915(e)(2));

see also Dahler v. Goodman , No. 97-3177, 139 F.3d 911, 1998 WL 67359, **2

(10th Cir., Feb. 19, 1998) (discussing standards). Citing        Smith v. Romer ,

No. 96-1211, 107 F.3d 21, 1997 WL 57093 (10th           Cir., Feb. 11, 1997), the district

court found that because plaintiff “failed to allege or establish that the appeal

which was dismissed involved a nonfrivolous attack on his sentence or

confinement [and] . . . provided no information concerning the merits of the

appeal,” R., Doc. 26 at 3, he had failed to state a claim for denial of access to the

courts. The record reflects that plaintiff indeed failed to attach a copy of his state

complaint to his federal suit. A review of his amended federal complaint reveals,

however, that he alleged that he filed a state suit against the Warden of the

Wyoming State Penitentiary and the Wyoming Attorney General,              see id. , Doc. 6 at

8; that it raised issues of “illegal confinement and due process”,       id. ; and that his

                                             -3-
appeal in state court was dismissed because he could not provide the Wyoming

state court legal authority for granting his application to waive or defer payment

of filing fees so that he could continue his appeal,    see id. , Doc. 6 at 4, Doc. 7 at

3-4.

       Dismissal for failure to state a claim is proper only when it is clear beyond

doubt that the complaint, viewed most favorably to the plaintiff, cannot be read to

state a valid claim.   See Hall v. Bellmon , 935 F.2d 1106, 1109 (10th Cir. 1991).

       A pro se litigant’s pleadings are to be construed liberally and held to
       a less stringent standard than formal pleadings drafted by lawyers.
       We believe that this rule means that if the court can reasonably read
       the pleadings to state a valid claim on which the plaintiff could
       prevail, it should do so despite the plaintiff’s failure to cite proper
       legal authority . . . or his unfamiliarity with pleading requirements.

Id. at 1110 (citations omitted). This    rule applies to §1915(e) proceedings

involving a pro se litigant.   See id. at 1110 n.3 (discussing § 1915(d), which is

now § 1915(e)). Plaintiff was not required to “establish” his claim         1
                                                                                ; he was only

required to allege enough facts to support it. Taking plaintiff’s well-pleaded

allegations as true and construing them in the light most favorable to plaintiff,          see

Yoder v. Honeywell Inc. , 104 F.3d 1215, 1224 (10th Cir.),         cert. denied , 118 S. Ct.

55 (1997) , we conclude that plaintiff’s complaint stated a valid claim. Instead of


1
      The district court apparently garnered its language from the   Smith opinion;
however, in that case, the court dismissed the plaintiff’s denial of access to the
court’s claim on summary judgment, after plaintiff had been given an opportunity
to come forward to support that claim.     See 1997 WL 57093 at **3.

                                             -4-
dismissing plaintiff’s suit because he failed to prove that the state complaint

involved a nonfrivolous attack on his sentence, the district court should have

afforded plaintiff an opportunity to support his claims. We hold that the district

court improperly dismissed plaintiff’s action on the basis of failure to state a

claim.


                                            II.

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

administrative remedies de novo.     See White v. McGinnis , 131 F.3d 593, 595 (6th

Cir. 1997) (dismissal under § 1915A). Plaintiff’s complaint was filed after

April 26, 1996, and is accordingly governed by the requirements of the Prison

Litigation Reform Act of 1995.     See Green v. Nottingham , 90 F.3d 415 (10th Cir.

1996). By this Act, Congress amended 42 U.S.C. § 1997e to provide 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) (West Supp. 1997). We have held that

exhaustion of remedies is now a mandatory requirement under the amended

statutes, see Garrett v. Hawk , 127 F.3d 1263, 1265 (10th     Cir. 1997), but we

emphasized in that case that the prisoner is required to exhaust only those

administrative remedies that are “actually available.”      Id. at 1267.

                                            -5-
       Although we have not specifically ruled on this question, several courts

have held that this section “does not impose exhaustion of administrative

remedies as a prerequisite to jurisdiction.”         Underwood v. Wilson , 151 F.3d 292,

294 (5th Cir. 1998); see Wright v. Morris , 111 F.3d 414, 421 (6th Cir.),      cert.

denied , 118 S. Ct. 263 (1997);   Lacey v. C.S.P. Solano Med. Staff      , 990 F. Supp.

1199, 1202-03 (E.D. Cal. 1997);      cf. Castille v. Peoples , 489 U.S. 346, 349 (1989)

(stating that the habeas corpus exhaustion rule is not a jurisdictional requirement).

This conclusion is supported by other provisions in § 1997e that provide that a

district court must screen prisoner complaints and dismiss those that are frivolous

or that fail to state a claim without requiring the exhaustion of administrative

remedies. See 42 U.S.C. §§ 1997e(c)(1) & (2). As the court in          Underwood

noted, a “court would not be empowered to do so if the exhaustion provision

deprived the court of jurisdiction over the action.” 151 F.3d at 295. An

exhaustion requirement that is not a jurisdictional prerequisite “is a condition

precedent to suit that functions like a statute of limitations and is subject to

waiver, estoppel, and equitable tolling.”       Million v. Frank , 47 F.3d 385, 389 (10th

Cir. 1995) (discussing Title VII filing requirements). Equitable tolling may be

appropriate where “the plaintiff has in some extraordinary way been prevented

from asserting his rights.”   Carlile v. South Routt Sch. Dist. RE 3-J     , 652 F.2d

981, 985 (10th Cir. 1981) (further quotation omitted).


                                               -6-
       The district court stated that because plaintiff admitted he had not filed a

grievance and failed to show that he “even attempted to file a grievance with

defendants,” plaintiff’s “conclusory allegation that he has no way to file a

grievance is insufficient to establish that no administrative remedies were

available.” R., Doc. 26 at 3. Plaintiff maintains that he was denied a copy of the

Wyoming prison policies, and that he did attempt to resolve the problem

administratively by writing letters to the defendants regarding his complaints. He

attached to his federal complaint copies of correspondence between himself and

the prison officials, including a letter and a “notice and demand” warning that he

would sue them if they continued to refuse to send him the materials he requested,

a letter requesting a copy of the Wyoming prison policies, and a letter denying his

request for a copy of the prison policies.     See id. , Doc. 7 Ex. B. The Wyoming

correctional facility had a responsibility to inform plaintiff of the proper way to

file and appeal a Wyoming grievance.         See 28 C.F.R. § 40.3 (“The written

grievance procedure shall be readily available to all . . . inmates of the institution.

Additionally, each inmate . . . shall, upon arrival at the institution, receive written

notification and an oral explanation of the procedure, including the opportunity to

have questions regarding the procedure answered orally.”).

       Under these circumstances, we hold that the district court erred by

dismissing the complaint without determining whether, under the circumstances


                                              -7-
of being incarcerated in an out-of-state facility with no access to prison policies,

plaintiff had any “actually available” administrative remedies to exhaust.      Cf.

Harris v. Champion , 15 F.3d 1538, 1555 (10th Cir. 1994) (finding that, in habeas

context, exhaustion may be excused where there is unjustified delay by state).

Further, we agree with the       Underwood court that, because “[d]ismissal under

§ 1997e is made on pleadings without proof[, a]s long as the plaintiff has alleged

exhaustion with sufficient specificity, lack of admissible evidence in the record

does not form the basis for dismissal.” 151 F.3d at 296.


                                              III.

       We review the trial court’s determination that plaintiff’s denial of access

claim is frivolous for abuse of discretion.      See Schlicher v. Thomas , 111 F.3d

777, 779 (10th Cir. 1997).   2
                                  A complaint is “frivolous or without merit if the


2
       Because § 1915(e)(2) and § 1915A(b) after the 1996 amendments no longer
contain discretionary language, we question whether abuse of discretion is now
the correct standard to apply.     See McGore v. Wrigglesworth , 114 F.3d 601, 604
(6th Cir. 1997) (analyzing the changes and adopting de novo review standard).
Further, “[e]n route to determining that a claim is frivolous, the district court
must determine whether it is legally insufficient, an issue purely of law on which
appellate review is plenary.” Billman v. Indiana Dep’t of Corrections    , 56 F.3d
785, 787 (7th Cir. 1995). Thus, a determination of frivolousness may now be
subject to de novo review, with the district court given discretion to refuse to
accept without question the truth of plaintiff’s allegations that are “clearly
baseless,” which encompass “fanciful,” “fantastic,” “delusional,” “wholly
incredible,” or “irrational” claims.   Denton v. Hernandez , 504 U.S. 25 , 32-33
(1992) (further quotation omitted). We reach the same result even if we were to
                                                                        (continued...)

                                              -8-
plaintiff cannot make a rational argument on the law or facts to support his

claim.” Phillips , 638 F.2d at 208. As discussed above, plaintiff has made a

rational argument on the law and the facts to support his claim of denial of access

to the courts. Therefore, we hold that the district court abused its discretion in

finding his complaint to be frivolous.


                                            IV.

       Finally, the district court opined that even if plaintiff “had shown that the

appeal involved a nonfrivolous claim attacking his sentence, . . . his claim should

be dismissed because the exhibits filed by plaintiff show that he was offered

reasonable alternatives to obtaining Wyoming legal resource material.”

R., Doc. 26 at 4. The court stated that the director of education at the Wyoming

State Penitentiary had sent plaintiff “legal material which he had requested. She

did require that he be specific in his requests, but also informed him that if he

could not be specific, the inmate law librarian at the Wyoming State Penitentiary

could do research for him pertaining to his case.”   Id. Thus, because in the court’s

view, plaintiff was “clearly afforded a reasonable alternative to obtaining legal

materials,” id. at 5, the court found that his claims were frivolous. We review the

court’s legal conclusion de novo.


2
 (...continued)
apply a de novo standard.

                                            -9-
       A review of the correspondence attached to plaintiff’s complaint shows

that, contrary to the court’s assertion, the director of education did not send

plaintiff the index for the Wyoming Statutes nor any of the substantive law

reporters or statutes he requested, except for copies of some specific cases.         See

id. , Doc. 7 Ex. B. As the Supreme Court has       stated, “[t]he tools . . . require[d] to

be provided are those that the inmates need in order to attack their sentences,

directly or collaterally, and in order to challenge the conditions of their

confinement.” Lewis v. Casey , 518 U.S. 343, 354 (1996). While it is true that a

prison may validly require a prisoner to more narrowly limit legal requests,        see

Petrick v. Maynard , 11 F.3d 991, 995-96 (10th Cir. 1993), we are hard-pressed to

understand how a prisoner would be able to narrow the scope of requests without

having access to indices or annotations so that the prisoner knows what to

request. When a prison limits access to the courts by restricting an inmate’s

access to legal resources, the court “must determine whether the prison’s policy is

reasonably related to legitimate penological interests.”      Id. at 994-95. In the past

we have considered economic factors, the reasonable alternatives to

accommodating inmate requests, and “whether there is a ‘valid’ connection

between the prison policy and putative government interest.”         Id. at 995. Of

course, without the benefit of the prison’s input into this equation, a court cannot

draw this balance; thus the district court’s conclusion was premature. We also


                                            -10-
have some reservation whether providing an inmate law librarian to do legal

research may qualify as providing adequate legal assistance if that is the only

access a prisoner is given. Because the district court relied on the erroneous

finding that the prison had sent plaintiff everything he had requested, and to the

extent that the district court’s ruling reflected its view that plaintiff’s access was

reasonable as a matter of law, the court erred by vaulting over the careful

balancing required under   Petrick . See id. at 996.

      The judgment of the United States District Court for the District of

Wyoming is REVERSED and REMANDED for proper service on defendants by

the district court. The mandate shall issue forthwith.



                                                       Entered for the Court



                                                       David M. Ebel
                                                       Circuit Judge




                                          -11-
