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

                         FOR THE TENTH CIRCUIT                 December 5, 2017

                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
    MICHAEL ANTHONY
    WHITESELL,

               Plaintiff-Appellant,
                                                     No. 17-4050
    v.                                      (D.C. No. 2:13-CV-1043-DAK)
                                                      (D. Utah)
    BRUCE O. BURNHAM,

               Defendant-Appellee.



                          ORDER AND JUDGMENT *


Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.


         This appeal involves an action under 42 U.S.C. § 1983 by Mr.

Michael Whitesell. Mr. Whitesell served two stints in prison: one in 2010

and another in 2013. In his first prison term, he allegedly encountered

deliberate indifference to a serious medical condition and eventually sued.


*
      The parties do not request oral argument, and we do not believe that
oral argument would be helpful. As a result, we are deciding the appeal
based on the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
Under federal law, he had to exhaust administrative remedies before suing.

42 U.S.C. § 1997e(a). He didn’t, and the district court granted the

defendant’s motion for summary judgment.

      Mr. Whitesell appeals and seeks leave to proceed in forma pauperis.

We affirm and grant leave to proceed in forma pauperis.

1.    Standard of Review

      In deciding the appeal, we engage in de novo review, viewing the

evidence in the light most favorable to Mr. Whitesell. Tuckel v. Grover,

660 F.3d 1249, 1251 (10th Cir. 2011). Viewing the evidence in this light,

we must determine whether Mr. Whitesell properly completed available

remedies. The undisputed evidence shows that he did not.

2.    Exhaustion

      Under federal law, a prisoner cannot bring suit under § 1983

regarding prison conditions until he or she completes the prison’s

administrative process. See Jernigan v. Stuchell, 304 F.3d 1030, 1032

(10th Cir. 2002) (“An inmate who begins the grievance process but does

not complete it is barred from pursuing a § 1983 claim . . . for failure to

exhaust his administrative remedies.”). Thus, we start with the

administrative remedies that were available to Mr. Whitesell.

      The first step in the administrative process (called “Level One”) was

to file a grievance within seven working days of an incident or the date

that the prisoner knew or should have known about a grievable incident. If

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the prisoner was dissatisfied with the response, he or she could file a

grievance appeal (called “Level Two”) to the warden or designee within

five working days of receiving the response. And if the prisoner remained

dissatisfied with the outcome, he or she could file another grievance appeal

(called “Level Three”) within five working days to the Hearing Office of

the Utah Department of Corrections.

3.   Mr. Whitesell’s Allegations and Administrative Steps

     The alleged denial of medical attention took place in February 2010.

According to Mr. Whitesell, he contracted pneumonia because of the poor

medical treatment. But Mr. Whitesell did not submit a grievance, and he

was released from prison and hospitalized roughly four months later. At

that point, of course, he could not take advantage of the prison’s

administrative requirements.

     He eventually returned to prison in 2013. Upon his return to prison,

he filed a grievance based on the medical treatment received three years

earlier. But he was out of time to file a grievance based on his medical

treatment in February 2010; a grievance had been due within seven

working days of the incident or the date that he should have known of a

grievable incident. Authorities declined to consider the grievance on the

ground that it was late. Months later, Mr. Whitesell submitted a Level Two

appeal. This appeal was also denied, and Mr. Whitesell never pursued a

Level Three appeal.

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      Mr. Whitesell argues that (1) he did not know about the mistreatment

until administrative remedies became unavailable, (2) he had no available

remedy because the deadline for a grievance had passed, and (3) a Level

Three appeal would have been futile. We reject these arguments.

      Mr. Whitesell argues that he did not know that he had pneumonia

until he was hospitalized four months later. But Mr. Whitesell did not need

a medical diagnosis to submit a grievance for improper medical treatment.

And he cannot avoid exhaustion by failing to take advantage of available

remedies until the passage of time renders them unavailable. Woodford v.

Ngo, 548 U.S. 81, 87 (2006). But even if Mr. Whitesell could be excused

from submitting the grievance out of time, he was again late when he filed

an administrative appeal at Level Two. And when he obtained an

unfavorable decision, he failed to file anything at Level Three. The failure

to properly complete Levels Two and Three would foreclose exhaustion

even if the delay at Level One had otherwise been excusable. See id. at 95.

      Mr. Whitesell also argues that a Level Three appeal would have been

futile because a grievance officer stated that such an appeal would be

rejected. In urging futility, Mr. Whitesell relies on Justice Breyer’s

concurrence in Woodford v. Ngo, 548 U.S. 81 (2006); see id. at 103-04

(Breyer, J. concurring). But Justice Breyer was not speaking for a majority,

and a majority of the Supreme Court has held that futility does not excuse

exhaustion under § 1997e(a). Booth v. Churner, 532 U.S. 731, 741 n.6

                                      4
(2001). Thus, the failure to pursue a Level Three appeal cannot be excused

based on futility.

                                    * * *

      In these circumstances, the district court correctly concluded that no

genuine issue of material fact existed on the issue of exhaustion. As a

result, we affirm the award of summary judgment to the defendant.

4.    Timing of the District Court’s Decision

      Mr. Whitesell also contends that the district court waited too long to

decide the summary-judgment motion. According to Mr. Whitesell, the

district court’s failure to decide the motion within 180 days required a

default judgment in favor of the plaintiff. No support exists for this

argument: a district court’s delay in deciding a summary-judgment motion

does not support a decision by default for either side.

5.    Leave to Proceed in Forma Pauperis

      Though we affirm the award of summary judgment to the defendant,

we grant leave to Mr. Whitesell to proceed in forma pauperis.

                                    Entered for the Court



                                    Robert E. Bacharach
                                    Circuit Judge




                                      5
17-4050     Whitesell v. Burnham

HARTZ, Circuit Judge, concurring:



      I concur because of failure to exhaust appellate remedies.




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