                                                                        FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                February 1, 2012
                                TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                  Clerk of Court

 DARRYL L. HINTON,

               Plaintiff - Appellant,

 v.                                                   No. 11-6259
                                               (D.C. No. 5:11-CV-00192-R)
 DONNA BOWERS, in her personal                        (W.D. Okla.)
 capacity; JANET DOWLING, in her
 personal capacity,

               Defendants - Appellees.


                          ORDER AND JUDGMENT *


Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.


      Darryl Hinton, an Oklahoma state inmate, filed this pro se 42 U.S.C.

§ 1983 action against two prison officials who allegedly violated his

constitutional rights. The district court dismissed Mr. Hinton’s claims because he

failed to exhaust the Oklahoma Department of Corrections’s (ODOC) grievance




      *
        After examining the briefs and the 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) and 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order and judgment is not binding precedent except under the doctrines of law of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. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
process as required by the Prison Litigation Reform Act of 1995 (PLRA), 42

U.S.C. § 1997e(a). Mr. Hinton now appeals.

      After reviewing the record, we agree with the district court that Mr. Hinton

failed to exhaust his administrative remedies. Although Mr. Hinton filed several

grievances, these were all returned unanswered because of noncompliance with

the ODOC’s grievance rules. Despite being given the opportunity to do so, Mr.

Hinton never appropriately refiled any of these grievances, and this is enough to

bar his claims under the PLRA. See Jones v. Bock, 549 U.S. 199, 218 (2007)

(“[T]o properly exhaust administrative remedies prisoners must ‘complete the

administrative review process in accordance with the applicable procedural

rules.’”) (quoting Woodford v. Ngo, 548 U.S. 81, 88 (2006)).

      Neither can we accept Mr. Hinton’s alternative argument on appeal — that

failure to exhaust administrative grievance procedures is not an affirmative

defense under the PLRA. It’s true that in Steele v. Federal Bureau of Prisons,

355 F.3d 1204, 1209-10 (10th Cir. 2003), we held that failure to exhaust is not an

affirmative defense, but that’s only because we concluded it is an essential

element of the plaintiff’s claim that must be pleaded in the complaint. Even this

is beside the point, though. The Supreme Court has since overturned Steele, and

it’s now quite clear that failure to exhaust is an affirmative defense in § 1983

cases, like this one, covered by the PLRA. See Jones, 549 U.S. at 216-17.




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       The district court’s dismissal of Mr. Hinton’s § 1983 claims is affirmed.

We grant Mr. Hinton’s motion to proceed on appeal without prepayment of costs

or fees and remind him that he must continue making partial payments until the

entire filing fee is paid in full.



                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




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