                                                                         FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 26, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 HERMAN BARNES, JR.,

               Plaintiff-Appellant,                      No. 11-1476
          v.                                             (D. of Colo.)
 D. ALLRED, Clinical Director,             (D.C. No. 1:11-CV-00575-CMA-BNB)

               Defendant-Appellee.


                            ORDER AND JUDGMENT *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Herman Barnes, Jr., a federal prisoner, filed a constitutional claim against

Dr. Allred, the Clinical Director of the United States Penitentiary Administrative

Maximum facility (ADX). Appearing pro se, he now appeals the district court’s

dismissal of his complaint for failure to exhaust administrative remedies. 1 Barnes


      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      1
        Because Barnes is proceeding pro se, we construe his filings liberally.
See Haines v. Kerner, 404 U.S. 519, 520 (1972).
argues he exhausted his administrative remedies through a Federal Bureau of

Prisons (BOP) inmate grievance procedure initiated in 2009.

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

                                I. Background

      Barnes is currently incarcerated at ADX. In 2011, Barnes filed a complaint

in district court against Dr. Allred under Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971). Barnes did not point to a

specific constitutional violation, but claimed Dr. Allred deliberately put his life in

serious danger by failing to provide him with a timely liver biopsy and treatment

for his hepatitis infection.

      He requested $250,000 in damages and a court hearing as to why the prison

had not yet begun hepatitis treatment. Dr. Allred moved for summary judgment

based on Barnes’s failure to exhaust administrative remedies. The magistrate

judge recommended the motion be granted, and the district court agreed,

dismissing the complaint without prejudice.

      In response to Dr. Allred’s motion, Barnes pointed to a series of three

grievances in a single BOP grievance process he initiated in 2009, which he

claimed demonstrated administrative exhaustion. 2 In addition to the 2009


      2
          The Federal BOP administrative process to redress inmate grievances is
codified at 28 C.F.R. §§ 542.10 et seq. and sets out a four-level process. The first
level is informal resolution with prison staff. 28 C.F.R. § 542.13(a). Requests
                                                                      (continued...)

                                         -2-
grievances, Dr. Allred pointed to a BP-9 grievance filed by Barnes in 2011, which

he claimed is the subject of Barnes’s civil complaint and which tended to show

Barnes failed to exhaust. We examine each of these grievances in turn.

      On February 18, 2009, Barnes filed his first BP-9 request (number 527409-

F1), complaining of pain in his left side and requesting his medical examination

report. 3 Barnes identified either a swollen kidney or his mattress as potential

      2
       (...continued)
for Informal Resolution Forms are not assigned a remedy identification number
and are not tracked. If unable to resolve the complaint informally, the inmate
may then submit an administrative remedy request to the Warden (a BP-9
request). 28 C.F.R. § 542.14. At this second level, the requests are assigned a
remedy identification number and an F-1 extension. The third level of the
administrative process involves filing an appeal at the regional level (a BP-10
request), which is assigned an R-1 extension. See 28 C.F.R. § 542.15(a). The
fourth and final level of appeal is to the Director of National Inmate Appeals in
the Office of the General Counsel in Washington, D.C. (a BP-11 request) and is
assigned an A-1 extension. See 28 C.F.R. § 542.15(a).
      3
          Because inmates are prohibited from raising new issues on appeal that
were not raised in lower level filings, see C.F.R. § 542.15(b)(2), Barnes must
have raised the issue pertinent to his complaint in his BP-9 request. Because of
the importance of this lower level filing to the exhaustion issue, we include the
full text of the grievance here. In his 2009 BP-9 request (number 527409-F1),
Barnes wrote,

                 Almost five months after I was examined to see if prostate
          cancer was causing me pain in my left side whenever I get out of
          bed or favor my left side, not only am I still experiencing the pain in
          my left side, I am now experiencing a loss of blood circulation in
          my left side whenever I wake up in the middle of the night to
          urinate. The fact of the matter is, the P.A. did not know what is
          causing the pain in my left side so nothing has been done to relieve
          the pain in my left side. So for legal purposes I would like a copy
          of the medical examination report that I had regarding this matter
                                                                          (continued...)

                                           -3-
causes of his left side pain. The Warden responded on March 11, 2009 by noting

Barnes was “scheduled to see the Clinical Director for Chronic Care Clinic in the

near future” and instructing him to discuss any concerns during that appointment.

R. at 14, 100. The Warden also outlined procedures for obtaining medical

records.

      Barnes then filed his BP-10 request (number 527409-R1) on March 18,

2009. Barnes noted he had been to this clinic twice before and both times was

informed that they did not know what was causing the pain in his left side. The

Regional Director responded to his appeal and concurred with the local Warden’s

response to his BP-9 request.

      On May 12, 2009, Barnes filed his BP-11 request (number 527409-A1).

Barnes again pointed to “pain in my left side” and noted he had not been “seen by

anyone from health services about it.” R. at 17, 103. In response, in August

2009, the Administrator of National Inmate Appeals noted “[y]ou allege you have

not received timely and appropriate care for your left sided abdominal pain.” R.

at 18, 104. The National Administrator concluded Barnes was “receiving medical

care and treatment in accordance with Bureau policy” and encouraged him “to

attend sick call if your condition changes.” Id. The response also mentioned “[a]



      3
          (...continued)
          because either my kidney is swollen or the mattress is causing me
          the pain in my left side. R. at 13, 99.

                                          -4-
liver biopsy has been requested to determine if your Hepatitis C infection meets

criteria for treatment with interferon.” 4 Id.

      Over a year later, on February 23, 2011, Barnes filed a new BP-9 request

(number 628145-F1) complaining Dr. Allred had deliberately put his life in

danger. He attached a report from his liver biopsy, which included handwritten

instructions to “proceed quickly with workup to submit for treatment,” which

Barnes claimed Dr. Allred had not done. R. at 78–79. Barnes explained he had

taken actions to informally resolve his complaint by signing a consent form to

take medication for his hepatitis treatment, but that Dr. Allred had failed to begin

the treatment. On his attached statement of expected resolution he wrote, “to

begin the hepatic [sic] treatment before my liver deteriorate worser [sic] than it

already have [sic].” R. at 79. On March 4, 2011, a handwritten note signed by

Barnes was added to this BP-9 form confirming that the complaint had been

informally resolved.

      This BP-9 grievance was not appealed, but Barnes thereafter filed a

complaint in district court which was dismissed. Barnes objects to the district

court’s dismissal of his complaint for failure to exhaust administrative remedies.




      4
          Barnes eventually did receive a liver biopsy in November 2010.

                                           -5-
                                 II. Discussion

      We review de novo a district court’s dismissal of a claim for failure to

exhaust administrative remedies. Patel v. Fleming, 415 F.3d 1105, 1108 (10th

Cir. 2005). The Prison Litigation Reform Act (PLRA) directs 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). The PLRA’s “exhaustion requirement applies

to all prisoners seeking redress for prison circumstances or occurrences.” Porter

v. Nussle, 534 U.S. 516, 520 (2002). “[A] grievance satisfies § 1997e(a)’s

exhaustion requirement so long as it provides prison officials with enough

information to investigate and address the inmate’s complaint internally.”

Kikumura v. Osagie, 461 F.3d 1269, 1285 (10th Cir. 2006), overruled on other

grounds by Robbins v. Okla. ex rel. Dep’t of Human Servs., 519 F.3d 1242 (10th

Cir. 2008).

      Dr. Allred moved for summary judgment, which the district court granted

and dismissed Barnes’s claim without prejudice for failure to exhaust

administrative remedies. Barnes then appealed here.

      Reviewing his case de novo, we see Barnes alleged Dr. Allred deliberately

put Barnes’s life in danger by failing to provide him with a timely liver biopsy

and hepatitis treatment. But Barnes failed to raise these issues in his first BP-9

                                         -6-
request in 2009. Nonetheless, Barnes argues he should be able to rely on the

National Administrator’s response to his BP-11 request (number 527409-A1) as

proof that he put prison officials on notice as to these issues. Barnes contends his

2009 grievances were filed with the goal of trying “to find out what was causing

his abdominal pain.” Aplt. Br. at 2. He argues the National Administrator’s

response “raised the issue that the plaintiff [sic] hepatitis infection was probably

the cause of his abdominal pain,” and therefore, he is entitled to use his 2009

complaints to show he exhausted his administrative remedies. Aplt. Br. at 3.

Barnes’s arguments fail for three reasons.

      First, Barnes’s argument that he is “entitled to use any information in his

admin. [sic] remedy appeal” to prove exhaustion, see Aplt. Br. at 3, is

unsupported by legal authority. To the contrary, Barnes was required to raise the

issue of Dr. Allred’s failure to timely order a liver biopsy and begin hepatitis

treatment in the initial BP-9 form. See 28 C.F.R. § 542.15(b)(2) (prohibiting

inmates from raising issues in an appeal that were not raised in the lower level

filing); see also, e.g., Davis v. Simmons, 103 F. App’x 344, 346 (10th Cir. 2004).

Because Barnes failed to raise the issue himself in his lower-level request, he

cannot rely on the National Administrator’s response as opening the door for him

to prove he exhausted his administrative remedies for the purposes of his civil

complaint.




                                          -7-
      Second, Barnes’s 2009 grievances did not provide prison officials with

enough information to internally resolve the issue in his civil complaint. In

Woodford v. Ngo, 548 U.S. 81, 93 (2006), the Supreme Court noted the PLRA

“seeks to afford correction officials time and opportunity to address complaints

internally before allowing the initiation of a federal case.” (internal citations and

quotations omitted). Requiring exhaustion serves this goal, but only “if the prison

grievance system is given a fair opportunity to consider the grievance.” Id. at 95.

Relying in part on this rationale, we have concluded a grievance satisfies

§ 1997e(a)’s exhaustion requirement only “so long as it provides prison officials

with enough information to investigate and address the inmate’s complaint

internally.” Kikumura, 461 F.3d at 1283, 1285.

      Barnes’s civil complaint raises a distinct issue: the failure to order a timely

liver biopsy and delaying treatment for hepatitis. While Barnes’s 2009 grievances

may have complained of issues related to those raised in his civil claim, the

similarity of issues alone is insufficient to satisfy exhaustion of administrative

remedies. See Ross v. County of Bernalillo, 365 F.3d 1181, 1188 (10th Cir. 2004)

(“Nor does a grievance exhaust administrative remedies for all future complaints

of the same general type.”), overruled on other grounds by Jones v. Bock, 549

U.S. 199, 223–24 (2007); see also Sayed v. Profitt, 415 F. App’x 946, 949 n.4

(10th Cir. 2011) (prisoner who had raised and exhausted the issue of a right to

perform partial ablution did not also raise the issue of a right to perform full

                                          -8-
ablution, despite the similarity of the issue), cert. denied, 132 S. Ct. 142 (2011).

As the magistrate judge below noted, Barnes’s generalized grievances about his

abdominal pain did not provide prison officials with enough information to

address this issue internally. Barnes was required to provide enough information

for officials to investigate and address the actual issue raised in his civil

complaint: that his life was put in serious danger by the failure to order a timely

liver biopsy and delay of hepatitis treatment. The 2009 BP-9 grievance (number

527409-F1) simply did not provide this detail of information.

      Third and finally, Barnes’s civil complaint relies on events that took place

after the BP-9 grievance was filed on February 18, 2009. A grievance “cannot

exhaust administrative remedies for claims based on events that have not yet

occurred.” Ross, 365 F.3d at 1188. Barnes complained of Dr. Allred’s failure to

order a timely liver biopsy. However, it was not until August 2009 that the

Administrator of National Inmate Appeals requested a liver biopsy. Barnes also

complained that he was not provided with timely hepatitis treatment. Again, it

was not until after the November 2010 liver biopsy that hepatitis treatment was

suggested. Because Barnes’s first BP-9 grievance was filed prior to the

occurrence of those events which form the basis for his civil complaint, that

grievance is insufficient for the purposes of proving exhaustion of administrative

remedies.




                                           -9-
      As Dr. Allred pointed out, the only grievance Barnes filed raising the issue

of a liver biopsy and failure to provide hepatitis treatment was his second BP-9

grievance (number 628145-F1) filed in February 2011. That complaint was

informally resolved when Barnes received the relief he requested (beginning

Hepatitis C treatment) and has not been appealed. But Barnes in no way relies on

that second BP-9 grievance to support his appeal here. He only argues that the

2009 grievance process proves he exhausted his administrative remedies. But, as

we explained earlier here, because Barnes did not sufficiently raise the issue in

his civil complaint in his first BP-9 grievance in 2009, Barnes failed to exhaust

his administrative remedies for the purposes of § 1997e(a).

                                III. Conclusion

      Accordingly, we AFFIRM the order of the district court. We GRANT

Appellant’s motion to proceed in forma pauperis and remind appellant that he

must continue making partial payments until the fee is paid in full.



                                                    ENTERED FOR THE COURT

                                                    Timothy M. Tymkovich
                                                    Circuit Judge




                                        -10-
