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order and judgment is not binding precedent except under the doctrines of law of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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