                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          August 2, 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    STEVEN K. BAUGHMAN,

                Plaintiff - Appellant,

    v.                                                   No. 04-6256
                                                   (D.C. No. 01-CV-1032-T)
    VICKIE HARLESS, DDS; BRADLEY                         (W. D. Okla.)
    PAYAS; D. LEMMONS; R. BRAZEE,
    DDS; G. COX, DCA II; R.
    ALBRIGHT, DDS,

                Defendants - Appellees.




                             ORDER AND JUDGMENT           *




Before BRISCOE , ANDERSON , and BRORBY , 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      This order and judgment is not binding precedent, except under the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 Steven K. Baughman, a prisoner proceeding pro se,   1
                                                                        appeals from

the district court’s order granting defendants’ motion for summary judgment and

dismissing his 42 U.S.C. § 1983 action for failure to exhaust administrative

remedies under 42 U.S.C. § 1997e(a). We exercise jurisdiction under 28 U.S.C.

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

                                    Background

      Mr. Baughman filed his civil rights action for declaratory, injunctive, and

damage relief against various Oklahoma Department of Corrections employees,

alleging that they had deprived him of adequate dental care and had treated his

dental needs with deliberate indifference in violation of his Eighth Amendment

right to be free from cruel and unusual punishment. He also asserted state-law

medical malpractice and negligence claims. In his complaint, Mr. Baughman

stated that he had exhausted his administrative remedies through the Oklahoma




1
      We liberally construe Mr. Baughman’s pro se pleadings.    See Haines v.
Kerner , 404 U.S. 519, 520 (1972) (per curiam);  Cummings v. Evans , 161 F.3d
610, 613 (10th Cir. 1998).

                                         -2-
Department of Corrections Inmate Grievance System    2
                                                         and by filing a Notice of

Claim with the Oklahoma Central Services Risk Management Division.

      Exhibits attached to the complaint show that for more than two years,

Mr. Baughman submitted various requests to staff concerning the dental care he

was receiving. After being dissatisfied with the responses, he filed a grievance,

No. 2000-02, on September 30, 1999, seeking proper dental attention, but

recognizing that the reviewer could not provide monetary compensation. He filed

an additional grievance concerning these same dental needs on October 20, 1999,

because he had received no response to the first grievance. In a memo, defendant


2
       Oklahoma has a three-step process for exhausting prison administrative
remedies. First, the inmate must request informal resolution by submitting a
“Request to Staff” form with a staff member. If informal resolution fails to
satisfy the inmate, he may submit an “Inmate/Offender Grievance Report Form”
along with the original “Request to Staff” form to the facility health services
administrator, who will respond within fifteen days of receipt of the grievance.
The facility head will conduct a final review of the health services administrator’s
grievance response, and, if the facility head concurs, he will sign and date the
response form. The reviewing authority will have the inmate sign and date the
response to acknowledge receipt. The original copy of the grievance, response,
and other paperwork will be returned to the inmate with a copy retained by the
reviewing authority. If there is no response within thirty days of submission, the
inmate may send the grievance to the medical deputy director/chief medical
officer with evidence of having submitted the grievance to the facility health
services administrator. An adverse grievance response may be appealed within
ten days to the medical deputy director/chief medical officer, who has twenty days
from receipt of the grievance appeal to respond and forward the original
grievance to the inmate. If more time is required to respond, the inmate will
receive written notice, and the grievance will be decided within ten working days.
This ruling is final, and it concludes the administrative remedy available to the
inmate from the Oklahoma Department of Corrections.

                                        -3-
Bradley Payas, the Health Services Administrator, stated that the first grievance

was responded to, but may not have been returned to Mr. Baughman, since the

original was still in prison files. Although the first grievance was denied on

October 8, 1999, Mr. Baughman signed and dated that he received it on October

29, 1999. At the bottom of the form, he checked a box indicating that he wished

to appeal. He signed and dated this portion of the form on October 30.

      After submitting other requests to staff, Mr. Baughman filed another

grievance, No. 2000-29, on November 16, 2000, also concerning his dental care

for the prior twenty-six months and seeking dental care and compensatory

damages. It too was denied. On December 1, 2000, Mr. Baughman signed and

dated the denial response, both acknowledging receiving it and indicating that he

wished to appeal. Mr. Baughman asserted that he placed his appeals of

grievances No. 2000-02 and No. 2000-29 in the prison mail on October 30, 1999

and December 1, 2000, respectively, but never received responses. He also filed a

claim for compensation with the Oklahoma Central Services Risk Management

Division on January 13, 2001, which was denied on February 6, 2001.    3




3
      Mr. Baughman was not required to file a tort claim in order to exhaust
administrative remedies, because there was no possibility for relief under the
Oklahoma Governmental Tort Claims Act.       See Okla. Stat. tit. 51, § 155(24)
(excluding liability for “operation or maintenance of any prison, jail or
correctional facility”).

                                         -4-
      The district court referred Mr. Baughman’s complaint to a magistrate judge,

who ordered defendants to prepare a special report pursuant to   Martinez v. Aaron ,

570 F.2d 317 (10th Cir. 1978). They did so and moved for dismissal or summary

judgment alleging, among other things, that Mr. Baughman failed to exhaust his

administrative remedies.   4
                               Defendants provided evidence that the medical deputy

director/chief medical officer never received an appeal of any grievance from

Mr. Baughman between August 1, 1998 and October 12, 2001. Mr. Baughman

responded and filed his own motion for summary judgment. He again asserted

that he mailed his grievance appeals, but received no responses. He also asserted

that the Oklahoma Department of Corrections does not provide a file stamped

copy of submitted grievance appeals and does not provide a means to ensure their

delivery once they are placed in the prison mail. Thus, he maintained that he had

exhausted all available remedies. To support his assertions, he submitted his own

affidavit stating that he mailed his final appeal in grievance No. 2000-29 on

December 1, 2000, but received no response and that after waiting a month he

filed his notice of tort claim for damages, which was denied. The magistrate

judge found that there were genuine issues of material fact whether

Mr. Baughman exhausted his administrative remedies and recommended that


4
      Defendants admitted that they could not find a copy of the response to
grievance No. 2000-29 in their grievance files, so they copied the copy attached
to Mr. Baughman’s complaint in order to include it in the special report.

                                           -5-
defendants’ motion for summary judgment be denied. Defendants objected to the

magistrate judge’s report and recommendation. In doing so, they submitted an

affidavit of Terence M. Bolt, a warden’s assistant, stating that he had reviewed

the prison legal and privileged mail logs and found that Mr. Baughman had not

made any such mailing during the relevant time period. The district court did not

consider this evidence in making its decision, however, because it had not been

presented to the magistrate judge. The district court denied summary judgment,

adopting the magistrate judge’s report and recommendation, but granted the

parties permission to file second motions for summary judgment after discovery.    5



Thereafter, the magistrate judge appointed counsel to represent Mr. Baughman.

      Subsequently, defendants filed a second summary judgment motion, again

arguing that Mr. Baughman failed to exhaust administrative remedies. Assuming

he did mail his grievance appeal, which defendants disputed, they argued that

Mr. Baughman should have inquired when he did not receive a timely response to

his appeal and mere mailing was insufficient to satisfy exhaustion requirements.

In responding to the motion, and again arguing that he had exhausted



5
       The district court also dismissed Mr. Baughman’s claims against defendant
R. Brazee; granted defendant Bradley Payas, G. Cox, R. Albright and
D. Lemmons’ request for summary judgment on Mr. Baughman’s claims for
injunctive relief; denied defendants’ motion for a protective order; and denied
Mr. Baughman’s motion for summary judgment. No issues on appeal concern
these court decisions.

                                          -6-
administrative remedies, Mr. Baughman submitted the affidavit of Robert P.

Underwood, a retired correctional officer who had spent twenty years with the

Oklahoma Department of Corrections. Mr. Underwood stated that mail room

employees occasionally failed to log prisoners’ incoming and outgoing mail due

to understaffing and the volume of mail passing through the prison each day.

Also, Mr. Baughman submitted his own affidavit and the affidavit of another

prisoner, Delbert Lynch, indicating that he did mail an appeal of grievance No.

2000-29.

      The district court granted defendants’ motion for summary judgment. In

doing so, the court decided as a matter of law that Mr. Baughman failed to

exhaust administrative remedies, because he had never received a final ruling on

his appeal, as is required under the prison regulations. Even if his failure to

obtain a final ruling did not dictate as a matter of law that he had failed to exhaust

administrative remedies, the court also held that the mere mailing of an appeal

was insufficient to exhaust administrative remedies. The court decided that when

Mr. Baughman failed to receive a ruling within a reasonable time, he was obliged

as part of the exhaustion requirement to cure the deficiency by resubmitting his

appeal with proof of previous timely mailing of the appeal or by mailing a letter

inquiring about the status of his appeal.




                                            -7-
                                        Analysis

              We review the district court’s grant of summary judgment de
       novo, applying the same legal standard used by the district court.
       Summary judgment is appropriate “if the pleadings, depositions,
       answers to interrogatories, and admissions on file, together with the
       affidavits, if any, show that there is no genuine issue as to any
       material fact and that the moving party is entitled to a judgment as a
       matter of law.” Fed. R. Civ. P. 56(c). When applying this standard,
       we view the evidence and draw reasonable inferences therefrom in
       the light most favorable to the nonmoving party.

Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs.       ,

165 F.3d 1321, 1326 (10th Cir. 1999) (citation omitted);     see also Jernigan v.

Stuchell , 304 F.3d 1030, 1032 (10th Cir. 2002) (reviewing district court’s finding

regarding failure to exhaust administrative remedies de novo).

       Under § 1997e(a), “[n]o action shall be brought with respect to prison

conditions under section 1983 . . . by a prisoner confined in any . . . prison until

such administrative remedies as are available are exhausted.” This “exhaustion

requirement applies to all prisoners seeking redress for prison circumstances or

occurrences.”    Porter v. Nussle , 534 U.S. 516, 520 (2002). It is mandatory, even

for prisoners seeking damage relief.     Id. at 524. “Exhaustion . . . serves the twin

purposes of protecting administrative agency authority and promoting judicial

efficiency.”    Simmat v. United States Bureau of Prisons   , No. 03-3361, 2005 WL

1541070, at *10 (10th Cir. July 1, 2005) (quotation omitted).




                                            -8-
      A prisoner has the burden to sufficiently plead exhaustion of grievance

proceedings, including supplying supporting documentation on exhaustion or if no

such documentation is available, describing with particularity the administrative

proceeding and its outcome.      Steele v. Fed. Bureau of Prisons   , 355 F.3d 1204,

1209-10 (10th Cir. 2003),     cert. denied , 125 S. Ct. 344 (2004). The prisoner must

follow the grievance process to its conclusion; the doctrine of substantial

compliance does not apply.      Jernigan , 304 F.3d at 1032-33.

      In this case, defendants provided evidence that they had never received a

grievance appeal from Mr. Baughman during the relevant time period and that no

entry in the prison mail logs showed that such appeals were sent. Mr. Baughman,

however, presented evidence indicating that he had mailed grievance appeals. He

therefore came forward with evidence showing a genuine issue of material fact on

the matter for which he has the burden of proof, whether he exhausted his

administrative remedies.     See Simms , 165 F.3d at 1326. The district court

recognized this when it found that “[i]n this case, at a minimum, a genuine issue

of material fact exists as to whether [Mr. Baughman] attempted to complete the

last step of the grievance procedure by mailing an appeal from the denial of his

grievance(s) to the Deputy Director/Chief Medical Officer.” Order at 4. Thus,

Mr. Baughman met his burden of presenting information supporting his claim that




                                            -9-
he attempted to exhaust his prison grievance remedies.        See Steele , 355 F.3d at

1209-10.

       Because there is a genuine issue of material fact, we next must consider

whether the district court erred as a matter of law in deciding that summary

judgment was proper. The exact issue we must address is what is legally

sufficient to constitute exhaustion.   6
                                           Section 1997e(a) does not define exhaustion

or establish requirements a prisoner must meet to be found to have exhausted his

prison grievance remedies.      Cf. Thomas v. Woolum , 337 F.3d 720, 722 (6th Cir.

2003) (“statute’s text does not condition access to the federal courts on satisfying

the procedures . . . of prison administrators”).

       Mr. Baughman correctly argues that § 1997e(a) only requires him to

exhaust “available” administrative procedures. In other words, he is only required

to exhaust grievance procedures that he is capable of exhausting.         See Underwood

v. Wilson , 151 F.3d 292, 295 (5th Cir. 1998) (per curiam).

       This circuit has determined that prison officials’ “failure to respond to a

grievance within the time limits contained in the grievance policy renders an

administrative remedy unavailable.”        Jernigan , 304 F.3d at 1032;   see also Boyd v.


6
        Defendants could have given Mr. Baughman the benefit of the doubt and
allowed him an opportunity to cure by permitting the filing of an appeal without
the restriction of a time bar. Cf. Jernigan , 304 F.3d at 1032 (prison officials
permitted prisoner opportunity to cure where he alleged he had submitted
grievance that was lost or misfiled).

                                             -10-
Corr. Corp. of Am. , 380 F.3d 989, 996 (6th Cir. 2004) (“conclud[ing] that

administrative remedies are exhausted when prison officials fail to timely respond

to a properly filed grievance”),   cert. denied , 125 S. Ct. 1639 (2005);     Lewis v.

Washington , 300 F.3d 829, 833 (7th Cir. 2002) (holding prison’s failure to timely

respond to grievance renders administrative remedies unavailable);           Foulk v.

Charrier , 262 F.3d 687, 698 (8th Cir. 2001) (holding prisoner exhausted available

remedies where prison officials failed to respond to his informal grievances);           7



Underwood , 151 F.3d at 295 (holding “available administrative remedies are

exhausted when the time limits for the prison’s response set forth in the prison

Grievance Procedures have expired”). If prison officials prevent a prisoner from

proceeding with exhaustion of administrative remedies, prison officials render

that remedy unavailable such that a court will deem the procedure exhausted.                 See

Lyon v. Vande Krol , 305 F.3d 806, 808 (8th Cir. 2002) (en banc);           Miller v.

Norris , 247 F.3d 736, 740 (8th Cir. 2001). And administrative remedies may be

found unavailable, thereby excusing an inmate from technically exhausting

remedies, where the prisoner supports his allegations that he placed his grievances

in the mail, but they were lost or destroyed and therefore his efforts to exhaust



7
       In Steele , 355 F.3d at 1209 n.3, we disagreed with    Foulk ’s and other
circuits’ holdings that § 1997e(a)’s exhaustion requirement is an affirmative
defense. We did note, however, that these cases “provide helpful analyses of
other aspects of exhaustion.”     Steele , 355 F.3d at 1209 n.3.

                                           -11-
available administrative remedies were impeded by correctional officers.    See

Veloz v. New York , 339 F. Supp. 2d 505, 515-16 (S.D.N.Y. 2004).

      Thus, under the circumstances presented here, grievance appeals may have

become unavailable through the actions or inactions of the prison mail room. If

Mr. Baughman was hindered from exhausting his administrative remedies by the

failure of prison officials to mail his grievance appeals, then the grievance

procedure is unavailable.

      Defendants, however, argue that even if Mr. Baughman mailed his

grievance appeals, he had a responsibility to inquire whether they had been

received after a certain period of time had passed, because placing the appeals in

the mail was insufficient for exhaustion. Mr. Baughman admits he made no

attempt to cure the fact that he never received a response to his grievance appeals.

The prison regulations, however, place no such responsibility on a prisoner. They

do not require or even provide an inquiry process for a prisoner who has not

received a response from his grievance appeal.

      Because the Oklahoma grievance procedure did not require or provide for

further process of an unanswered grievance appeal, Mr. Baughman exhausted all

of the available administrative remedies, if indeed he did submit his appeals as he

has alleged. See Abney v. County of Nassau , 237 F. Supp. 2d 278, 283 (E.D.N.Y.

2002); cf. Abney v. McGinnis , 380 F.3d 663, 668-69 (2d Cir. 2004) (holding that


                                          -12-
administrative remedies were unavailable where applicable grievance procedures

did not provide mechanism for appeal). We therefore disagree with defendants’

assertion and the district court’s finding that merely mailing a grievance appeal is

insufficient to exhaust the grievance appeal process even if the appeal was never

received.

      Defendants also argue that a response from the medical deputy

director/chief medical officer is required to exhaust administrative remedies. The

prison regulations indicate that a response to a grievance appeal is final and

concludes the available administrative remedies. As indicated above, this

regulation fails to offer any process to inmates who submit a grievance appeal,

but who fail to receive any response. Because § 1997e(a) “does not condition

access to the federal courts on satisfying the procedures . . . of prison

administrators,” Thomas , 337 F.3d at 722, we conclude that the failure to receive

a response to an appeal is not fatal to a finding of exhaustion of available

administrative remedies, if the prisoner, in fact, followed prison rules for

exhausting administrative remedies.

      We conclude the district court erred in granting summary judgment to

defendants. Because there is a genuine issue of material fact whether

Mr. Baughman exhausted his available administrative remedies, we reverse the




                                          -13-
district court’s grant of summary judgment and remand for further proceedings on

the question of exhaustion.   8



                                    Conclusion

       The judgment of the district court is REVERSED, and the case is

REMANDED for further proceedings. Although the district court granted

Mr. Baughman’s request to proceed on appeal without prepayment of fees, he

must make partial payments as specified in 28 U.S.C. § 1915(b)(1) until his filing

fee is paid in full.



                                                    Entered for the Court



                                                    Wade Brorby
                                                    Circuit Judge




8
       In his appellate brief, Mr. Baughman asks for a jury trial. In his complaint,
however, he made no such request. Thus, the district court need not hold a jury
trial on the exhaustion issue. Also, it appears that on appeal Mr. Baughman’s
arguments concern only grievance No. 2000-29. On remand, he must clarify to
the district court whether has waived any arguments with respect to his first
grievance, No. 2000-02.

                                        -14-
