                                                                                   FILED
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                             December 2, 2014
                                    TENTH CIRCUIT
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
 MARIO ANTON LEE,

        Plaintiff - Appellant,

 v.                                                           No. 14-1249
                                                 (D.C. No. 1:13-CV-01895-CMA-MJW)
 BENUELOS, Lieutenant; BERRY,                                (D. Colorado)
 Lieutenant; M. EBENHART, Officer;
 ERPS, Officer; HUDDLESTON, Nurse
 (EMT); LENGREN, Nurse; LEE, Officer;
 LITVAN, Lieutenant; MARTINEZ,
 Lieutenant; MOHLER, Officer; ROY,
 Officer; SHORT, Officer; THOMPSON,
 P.A.; J. WISEMAN, Officer;
 McDERMOTT, Medical Director, all in
 their individual and official capacities,

        Defendants - Appellees.


                                 ORDER AND JUDGMENT*


Before GORSUCH, MURPHY and McHUGH, Circuit Judges.



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

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


       * This order and judgment is not binding precedent, except under the doctrines of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.
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.

       Mario Anton Lee, a federal prisoner proceeding pro se, appeals the district court’s

orders dismissing his complaint on the basis that he failed to exhaust his administrative

remedies as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e.

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

                                   I.    BACKGROUND

       Mr. Lee is currently incarcerated in a federal correctional institution located in

Florence, Colorado (FCI Florence). He filed suit in the United States District Court for

the District of Colorado pursuant to Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971), alleging that from February 8 through

February 9, 2013, various prison officials (collectively, Defendants) violated his Eighth

Amendment rights when they assaulted him, restrained him, and failed to treat his

resulting injuries. Before filing suit in federal court, Mr. Lee attempted to obtain

administrative review of his claims against Defendants through the Bureau of Prison’s

(BOP) internal grievance process. To put our analysis in context, we briefly describe the

prison’s internal grievance process before delving into Mr. Lee’s efforts to exhaust those

administrative remedies.

       The BOP employs a four-step process to address inmate claims. The first step is an

informal grievance resolution process. 28 C.F.R. § 542.13(a). If the attempt at informal

resolution is unsuccessful, an inmate must next file with the warden of the institution a
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formal “Administrative Remedy Request” within twenty days from the date on which the

basis for the complaint occurred. Id. § 542.14(a). An inmate dissatisfied with the

institution’s response to the Administrative Remedy Request must appeal that decision to

the appropriate regional director within twenty days. Id. § 542.15(a). Finally, if

dissatisfied with the regional director’s response, the inmate must submit a second appeal

to the BOP’s general counsel (i.e., the Central Office) within thirty days. Id. The appeal

to the Central Office is the final level of administrative appeal available to an inmate. See

id.

       With respect to each of the administrative deadlines, the regulations give prison

officials the discretion to excuse an untimely filing “where the inmate demonstrates a

valid reason for delay.” Id. §§ 542.14(b), 542.15(b). “Valid reasons for delay include . . .

an unusually long period taken for informal resolution attempts.” Id. § 542.14(b). The

BOP encourages officials to be “flexible” when deciding whether to reject a submission

as untimely, “keeping in mind that major purposes of [the grievance process] are to solve

problems and be responsive to issues inmates raise.” Patel v. Fleming, 415 F.3d 1105,

1110 & n.6 (10th Cir. 2005) (quoting BOP Program Statement 1330.13(11)(b)(3)

(2002)). Therefore, the BOP advises that “consideration should be given to accepting a

[r]equest or [a]ppeal that raises a sensitive or problematic issue, such as medical

treatment . . . [or] staff misconduct, even though the submission may be somewhat

untimely.” Id. at 1110 n.6 (quoting BOP Program Statement 1330.13(11)(b)(3)). Where

an inmate appeals a rejection of a request on the basis that it is untimely, prison officials
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“may affirm the rejection, may direct that the submission be accepted at the lower level

(either upon the inmate’s resubmission or direct return to the lower level), or may accept

the submission for filing.” BOP Program Statement 1330.13(11)(c).

       Pursuant to the four-step process, Mr. Lee attempted to exhaust his administrative

remedies with respect to the alleged assault by filing two internal administrative remedy

requests. First, in claim number 729465, Mr. Lee alleged that from February 8 through 9,

2013, prison staff assaulted him, unlawfully restrained him, and failed to provide him

necessary medical care. In a related claim (number 730994), Mr. Lee requested that

prison staff retain video footage depicting his cell on the date of February 8, 2013.

Because staff was unavailable to immediately assist Mr. Lee with the informal grievance

process on either claim, Mr. Lee was unable to submit his formal Administrative Remedy

Requests (the Requests) until after the twenty-day deadline had expired. Accordingly,

FCI Florence rejected both Requests as untimely.1 Mr. Lee appealed these decisions to

the regional director, who concurred with the institution’s reasons for rejection and stated

the Requests were untimely. Mr. Lee also appealed these decisions to the Central Office,

which agreed with FCI Florence that the Requests were untimely. However, consistent


       1
         FCI Florence also rejected the Request for claim number 729465 because it was
not submitted through a counselor and was improperly submitted through institutional
mail. In addition, although FCI Florence rejected the Request for claim number 730994
as untimely because “the alleged issue took place in January 2013, well over 20 days
ago,” ROA Vol. I 530, careful review of the record indicates Mr. Lee sought video
footage of the February 2013 incident. This discrepancy does not affect our analysis
because Mr. Lee’s Request was untimely using either a January or the February date.

                                             -4-
with the regulations and program statement, which allow prison officials in some cases to

excuse untimely filings, the Central Office directed Mr. Lee to provide staff verification

to explain the reasons for his untimely filing.

       Mr. Lee complied with this direction and obtained from prison staff memoranda

explaining that his Requests were untimely due to staff unavailability. The memoranda

asked prison officials to “accept his [Requests] without penalty of an untimely filing.”

Mr. Lee then resubmitted his Requests, along with the staff memoranda, to the Central

Office. The Central Office again rejected Mr. Lee’s Requests, this time not because they

were untimely, but because they were submitted at the wrong administrative level. It

advised Mr. Lee to resubmit the Requests along with the staff memoranda directly to FCI

Florence.

       Rather than resubmit the Requests to the institution as directed, Mr. Lee initiated

the instant suit. The district court referred the case to a magistrate judge for initial

proceedings and Defendants moved for summary judgment, asserting Mr. Lee had failed

to exhaust his administrative remedies. Without conducting a hearing, the magistrate

judge recommended that Defendants’ motion for summary judgment be granted and the

case be dismissed. It determined Mr. Lee did not exhaust his administrative remedies

prior to filing suit because he failed to refile his Requests at the institutional level as

directed. The district court adopted the magistrate judge’s report and recommendation

over Mr. Lee’s objections and dismissed the case without prejudice. Mr. Lee appeals,

asserting the district court improperly dismissed his complaint, without first conducting a
                                               -5-
hearing, based on his failure to exhaust. He also claims that rather than dismiss, the court

should have stayed proceedings for ninety days pending exhaustion.

                                     II.   DISCUSSION

                                   A. Standard of Review

       We review the district court’s decision to grant Defendants summary judgment on

the basis of Mr. Lee’s failure to exhaust his administrative remedies de novo. See

Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1138 (10th Cir. 2005) (reviewing de

novo a district court’s finding that plaintiff failed to exhaust); Argo v. Blue Cross & Blue

Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (“We review a district court’s

decision granting summary judgment de novo, resolving all factual disputes and drawing

all reasonable inferences in favor of the non-moving party.”).

                        B. Exhaustion of Administrative Remedies

       Pursuant to § 1997e(a) of the PLRA, “No action shall be brought with respect to

prison conditions under . . . any . . . Federal law . . . until such administrative remedies as

are available are exhausted.” 42 U.S.C. § 1997e(a); accord Porter v. Nussle, 534 U.S.

516, 524 (2002) (holding that under § 1997e(a), federal prisoners suing under Bivens

must first exhaust inmate grievance procedures). This provision requires “proper

exhaustion,” that is, full compliance with the prison’s grievance procedure. See Woodford

v. Ngo, 548 U.S. 81, 90, 93 (2006). Accordingly, “[a]n inmate who begins the grievance

process but does not complete it is barred from pursuing a . . . claim under [the] PLRA

for failure to exhaust his administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030,

                                              -6-
1032 (10th Cir. 2002). But although exhaustion is a prerequisite to filing suit in federal

court, inmates are only required to exhaust available administrative remedies. “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).

       On appeal, the government maintains the district court correctly dismissed Mr.

Lee’s complaint because he failed to exhaust his administrative remedies. It argues that at

the time Mr. Lee filed suit in federal court, he had not refiled the Requests with FCI

Florence as directed. Mr. Lee challenges the court’s decision, asserting he should be

excused from the exhaustion requirement because prison officials rendered the

administrative remedies unavailable to him by ignoring or interfering with his attempts to

exhaust. He also claims the district court should have held an evidentiary hearing before

granting Defendants’ summary judgment motion.

       We agree with the government that Mr. Lee did not exhaust his administrative

remedies prior to filing suit because it is undisputed that at the time he filed his complaint

in federal court, he had not refiled his Requests with the institution as directed. We also

reject Mr. Lee’s argument that prison officials rendered his administrative remedies

unavailable. Mr. Lee has pointed to nothing in the record to support his claim that prison

officials prevented, thwarted, or hindered his efforts to pursue his claims through the

administrative process. To the contrary, rather than ignore or interfere with his attempts

to exhaust, the record reveals prison officials at the Central Office were willing to excuse
                                             -7-
the untimeliness of the initial Requests on the basis of the memoranda in support of

leniency provided by prison staff. The Central Office then clearly instructed Mr. Lee to

refile his Requests at the institutional level. Mr. Lee does not assert he was prevented

from resubmitting his Requests to FCI Florence or explain how this requirement impeded

or obstructed his access to the administrative remedy process.2 See BOP Program

Statement 1330.13(11)(c) (giving the Central Office the discretion to “direct that the

submission be accepted at the lower level (either upon the inmate’s resubmission or

direct return to the lower level).” (emphasis added)).

       In addition, Mr. Lee was not entitled to an evidentiary hearing before the district

court ruled on Defendants’ summary judgment motion. Review of the order clearly

reflects that the magistrate judge examined the parties’ briefs and supporting materials to

evaluate the merits of Defendants’ motion. Nothing in the record suggests the judge could

not adequately address the issues and evidence presented in this case by review of these

written submissions. See Geear v. Boulder Cmty. Hosp., 844 F.2d 764, 766 (10th Cir.


       2
          Mr. Lee has presented documentation on appeal indicating that after the district
court dismissed his case without prejudice, he refiled his Request for claim number
729465 with FCI Florence as directed by the Central Office. See Fitzgerald v. Corr.
Corp. of Am., 403 F.3d 1134, 1139 (10th Cir. 2005) (“[F]ailure to exhaust administrative
remedies is often a temporary, curable, procedural flaw. If the time permitted for
pursuing administrative remedies has not expired, a prisoner who brings suit without
having exhausted these remedies can cure the defect simply by exhausting them and then
reinstituting his suit (in the event the administrative claim fails to afford him the desired
relief.”)). Before Mr. Lee can file suit in court, he must complete the administrative
process with respect to that refiled Request. Only then will he know whether the
administrative process has failed to afford him the relief he seeks.

                                             -8-
1988) (holding that any hearing requirement for summary judgment motions is satisfied

by court’s review of documents submitted by parties). Therefore, the district court

properly dismissed Mr. Lee’s complaint without first conducting an evidentiary hearing

because it is undisputed that at the time he filed suit, Mr. Lee had not exhausted his

administrative remedies.

                       C. Stay of Proceedings Pending Exhaustion

       Mr. Lee also asserts that rather than granting Defendants’ motion for summary

judgment, the court should have stayed the proceeding for ninety days so he could

properly exhaust his administrative remedies.

       Mr. Lee is correct that under the pre-PLRA version of § 1997e, courts were

directed to stay actions not administratively exhausted “‘if the court believed that such a

requirement would be appropriate and in the interests of justice.’” Garrett v. Hawk, 127

F.3d 1263, 1265 (10th Cir. 1997) (brackets omitted) (quoting 42 U.S.C. § 1997e(a)(1)

(1994)), abrogated on other grounds by Booth v. Churner, 532 U.S. 731 (2001).

However, under the current version of the statute, which we are bound to apply, “[n]o

action shall be brought . . . until such administrative remedies as are available are

exhausted.” Id. (quoting 42 U.S.C. § 1997e(a) (1997)); accord Porter v. Nussle, 534 U.S.

516, 524 (2002) (noting “[t]he current exhaustion provision differs markedly from its

predecessor. Once within the discretion of the district court, exhaustion in cases covered

by § 1997e(a) is now mandatory.”); Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134,

1140–41 (10th Cir. 2005) (“42 U.S.C. § 1997e(a) requires exhaustion of administrative
                                             -9-
remedies as a precondition to bringing litigation, and requires dismissal where a litigant

has failed to complete such exhaustion.”). Thus, Mr. Lee was not entitled to a stay of

proceedings pending proper exhaustion of his administrative remedies and the district

court correctly dismissed the complaint.

                                  III.   CONCLUSION

       For the foregoing reasons, we AFFIRM the decision of the district court granting

Defendants summary judgment and dismissing Mr. Lee’s complaint without prejudice.

We GRANT Mr. Lee’s motion to proceed in forma pauperis, but remind him of his

obligation to make partial payments until the district court and appellate filing fees are

paid in full. See 28 U.S.C. § 1915(b)(1).

                                            ENTERED FOR THE COURT


                                            Carolyn B. McHugh
                                            Circuit Judge




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