                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                       February 22, 2012
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                          Clerk of Court
                                    TENTH CIRCUIT


 EZEKIEL DAVIS,
               Plaintiff – Appellant,
 v.                                                     Nos. 11-7027 & 11-7044
                                                  (D.C. No. 6:09-CV-00466-RAW-SPS)
 CORRECTIONS CORPORATION OF                                 (E.D. Oklahoma)
 AMERICA; JIM KEITH, Warden; SADA
 JONES; CHIEF COTTON, Chief of
 Security; OKLAHOMA DEPARTMENT
 OF CORRECTIONS; JOHNNY
 BLEVINS, Director of Internal Affairs;
 ROBERT HERT; REBECCA ADAMS,
               Defendants – Appellees.


                              ORDER AND JUDGMENT*


Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges.


       After examining the briefs and the appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of these

consolidated appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is

therefore ordered submitted without oral argument.

       In these consolidated appeals, Plaintiff challenges the district court’s dismissal of

his 42 U.S.C. § 1983 prisoner complaint based on his failure to exhaust administrative


       *
         This order and judgment is not binding precedent, except under the doctrines of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.
remedies. Plaintiff is an inmate in the custody of the Oklahoma Department of

Corrections. At all times relevant to this case, he was incarcerated in a private prison

operated by the Corrections Corporation of America. In his complaint, Plaintiff alleged

that ODOC, CCA, and various correctional officials and prison employees violated his

constitutional rights by, inter alia, forcing him to remain in a lock-down cell for three

months with a cell-mate who was mentally ill, aggressive, and HIV-positive. The district

court agreed with Defendants that Plaintiff had not exhausted his administrative remedies

by completing the prison grievance process, and the court therefore dismissed Plaintiff’s

complaint without prejudice.

       Exhaustion of available administrative remedies is mandatory under the Prison

Litigation Reform Act, 42 U.S.C. § 1997e(a). However, as this court has recently

reemphasized, “[t]he plain language of the PLRA requires that prisoners exhaust only

available remedies. It follows that if an administrative remedy is not available, then an

inmate cannot be required to exhaust it.” Tuckel v. Grover, 660 F.3d 1249, 1252 (10th

Cir. 2011) (citation omitted). “Where prison officials prevent, thwart, or hinder a

prisoner’s efforts to avail himself of an administrative remedy, they render that remedy

‘unavailable’ and a court will excuse the prisoner’s failure to exhaust.” Little v. Jones,

607 F.3d 1245, 1250 (10th Cir. 2010). “Based on this principle, we have obligated

district courts to ensure that any defects in exhaustion are not procured from the action or

inaction of prison officials.” Tuckel, 660 F.3d at 1252 (quotation marks and brackets

omitted).

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       In this case, Plaintiff alleges—and Defendants’ evidence confirms—he submitted

approximately five informal complaints about his housing assignment to his unit manager

and others. ODOC’s grievance policy requires staff members to provide an inmate with a

written response to an informal complaint within ten working days. However, Plaintiff

alleges he never received a written response to his complaints, and Defendants do not

dispute this allegation. Indeed, Plaintiff’s unit manager conceded in her affidavit that she

did not respond to his informal complaints in writing.1

       Because Plaintiff never received a written response to his informal complaints, his

formal grievances were repeatedly rejected based on the lack of a staff response to the

attached complaints. Defendants contend, however, Plaintiff could still have availed

himself of the prison grievance procedure by (1) sending his informal complaints through

his unit clerk so they would be logged, providing him with evidence of his attempts to

resolve the matter informally, and/or (2) filing a grievance regarding the unit manager’s

failure to respond to his informal complaints. As for the first suggestion, Defendants

point to nothing in the submitted ODOC or prison grievance policies that call for informal

complaints to be logged by a unit clerk. The grievance policies included in the record

simply state that informal complaints should be given to unit staff, a description which



       1
         She contends a written response was unnecessary because Plaintiff told her in
person that his issues with his cell-mate had been resolved; he contends she never spoke
to him about it or took any other action on his complaints. Either way, the unit manager
clearly did not follow ODOC’s grievance policy, which does not list any exceptions to the
requirement for staff to provide a written response to inmates’ informal complaints.

                                            -3-
would appear to include the unit manager. We will not impose a requirement that is

never mentioned in the applicable written policies. See Jones v. Bock, 549 U.S. 199, 218

(2007). As for Defendants’ second suggestion, the record reflects Plaintiff attempted to

file a grievance regarding the lack of a staff response to his informal complaints about the

housing situation. However, this grievance was again rejected because the staff portion

of the attached informal complaints was not filled out. In returning this grievance, the

grievance coordinator stated, “The attached [informal complaints] are incomplete. I have

forwarded a copy of them to Unit Manager Jones for her review and completion.” (R.

vol. 1 at 102.) There is no indication the unit manager ever reviewed or completed these

forms, and it is not clear what, if anything, Plaintiff could have done at this point to have

his underlying complaint heard.

       Because prison staff failed to comply with the requirement to provide a written

response to Plaintiff’s informal complaints and then rejected all of his formal

grievances—even his grievance about the lack of response—based on this lack of

response, the prison grievance process did not make an administrative remedy available

to Plaintiff. The district court therefore erred in dismissing Plaintiff’s complaint based on

his failure to complete the prison grievance process.

       On appeal, Defendants raise several alternate grounds for affirming the dismissal

of Plaintiff’s complaint. The district court did not rule on these issues below, and we

think it best for these issues to be determined in the first instance by the district court on

remand.

                                              -4-
       We accordingly REVERSE the district court’s dismissal of Plaintiff’s complaint

and REMAND for further proceedings in accordance with this decision. We GRANT

Plaintiff’s motion to proceed in forma pauperis on appeal and remind him of his

obligation to continue making partial payments until his entire filing fee has been paid in

full. All other pending motions are DENIED.

                                                  Entered for the Court



                                                  Monroe G. McKay
                                                  Circuit Judge




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