Appellate Case: 23-1189 Document: 010111079946 Date Filed: 07/16/2024 Page: 1 FILED United States Court of Appeals Tenth Circuit PUBLISH July 16, 2024 UNITED STATES COURT OF APPEALS Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
BRIAN ESTRADA,
Plaintiff - Appellant,
v. No. 23-1189
JACOB SMART,
Defendant - Appellee. _________________________________
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:20-CV-00549-WJM-STV) _________________________________
Nicole L. Masiello (Robert Reeves Anderson, Arnold & Porter Kaye Scholer LLP, Denver, Colorado, and Andrew T. Tutt, Arnold & Porter Kaye Scholer LLP, Washington, DC, with her on the briefs), Arnold & Porter Kaye Scholer LLP, New York, New York, for Appellant.
Abigail L. Smith, Senior Assistant Attorney General (Philip J. Weiser, Colorado Attorney General, with her on the brief), Colorado Department of Law, Denver, Colorado, for Appellee. _________________________________
Before McHUGH, MURPHY, and FEDERICO, Circuit Judges. _________________________________
FEDERICO, Circuit Judge.
When Congress enacted the Prison Litigation Reform Act (“PLRA”) in
1996, it declared that “[w]hat this country needs . . . is fewer and better Appellate Case: 23-1189 Document: 010111079946 Date Filed: 07/16/2024 Page: 2
prisoner suits.” Jones v. Bock, 549 U.S. 199, 203 (2007). The PLRA elevated
mandatory administrative exhaustion to its current height in 42 U.S.C.
§ 1997e(a). Section 1997e(a) states: “No action shall be brought with
respect to prison conditions under . . . Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a) (emphasis added).
Section 1997e(a) requires a prisoner to exhaust all available
administrative remedies “prior to filing a lawsuit regarding prison
conditions in federal court.” Little v. Jones, 607 F.3d 1245, 1249 (10th Cir.
2010) (citing § 1997e(a)). Exhaustion under the PLRA is “mandatory” and
“unexhausted claims cannot be brought in court.” Jones, 549 U.S. at 211
(citing Porter v. Nussle, 534 U.S. 516, 524 (2002)).
In May 2018, Plaintiff Brian Estrada was a prisoner confined in the
custody of the Colorado Department of Corrections (“CDOC”). While
attempting to escape a Colorado county courthouse, he was shot three times
by Defendant Jacob Smart, a CDOC officer. Estrada later sued Smart under
42 U.S.C. § 1983 and alleged excessive force, but the district court granted
Smart’s summary judgment motion. It concluded that Estrada had failed to
exhaust all available CDOC administrative remedies by not following
CDOC’s three-step grievance process.
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Final judgment was entered, and Estrada timely appealed, so we have
jurisdiction under 28 U.S.C. § 1291. Estrada now argues that a county
courthouse is not a CDOC prison, so his lawsuit is not “with respect to
prison conditions” under the PLRA. He also claims the CDOC grievance
procedures apply only to CDOC prisons, so his claim is outside the scope of
when and where they apply.
Having considered the record, briefing, and oral argument in full, we
affirm the entry of summary judgment. In this PLRA case, geography is not
the controlling factor. Instead, as the district court correctly determined,
the PLRA and CDOC’s grievance procedures both applied to the shooting of
a CDOC inmate by a CDOC officer.
I
In May 2018, Estrada was an inmate of CDOC. That month, CDOC
transported him to the Logan County Courthouse in northeastern Colorado
for a hearing in a pending criminal case. While in the jury box of a
courtroom on the second floor, Estrada attempted to escape. His hands and
ankles were shackled to his waist, so he could only shuffle across the floor.
During Estrada’s shuffle across the courtroom, he was shot three times by
Smart, a CDOC officer, who was posted in the courtroom and in charge of
guarding Estrada. No other officer in the courtroom had reached for their
gun. Estrada was unarmed.
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Estrada survived being shot and returned to custody as a CDOC
inmate. In 2020, while in CDOC custody, he sued Smart, in his personal
capacity, in federal district court in Colorado. His complaint alleged a single
claim for excessive force in violation of the Eighth Amendment under
§ 1983.
After Estrada filed his First Amended Complaint, Smart moved to
dismiss under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) based on
qualified immunity. The district court denied that motion, ruling that
Smart “should have been on notice that use of deadly force on an unarmed
prisoner restrained in the manner as was Plaintiff would violate Plaintiff’s
Eighth Amendment right to be free of the use of excessive force[.]” Aplt.
App’x at 79–80.
The case then entered the discovery phase. Beyond Estrada’s
deposition, it is unclear whether any other depositions occurred. The parties
cite to no depositions in the record, nor do they mention written discovery.
After discovery concluded, Smart filed a motion for summary
judgment under Rule 56 based on his affirmative defense of failure to
exhaust administrative remedies. Estrada was a CDOC inmate at the time
of the shooting and when he filed suit, yet he did not pursue CDOC’s three-
step grievance process regarding the courthouse shooting.
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In support of the summary judgment motion, Smart introduced the
following evidence: (1) a declaration from Anthony DeCesaro (the “DeCesaro
Declaration”), a CDOC Step 3 Grievance Officer with personal knowledge
about Estrada’s grievance filings and the scope of the CDOC’s grievance
procedures; (2) CDOC Administrative Regulation (“AR”) 850-04; and (3)
portions of Estrada’s deposition testimony.
As described by Estrada in his Opening Brief, the DeCesaro
Declaration “appended a complete copy of the operative administrative
regulation governing grievances, and the regulation in effect at the time
this suit was filed.” Aplt. Br. at 15 (citations omitted). The DeCesaro
Declaration detailed CDOC’s “formalized three-step grievance process for
inmates set forth in Administrative Regulation (‘AR’) 850-04.” Aplt. App’x
at 116.
At summary judgment, Estrada disputed only the scope of AR 850-04.
He argued it did not apply to the courthouse shooting, as he pointed out
that the Logan County Courthouse is not a CDOC facility.
As to the scope of the administrative regulation, both sides focused on
AR 850-04(IV)(D)(1), which states that the CDOC grievance procedures
cover “a broad range of complaints including, but not limited to: policies,
conditions, and incidents within the facility that affect the offender
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personally; actions by employees and offenders and for resolving offender
issues relating to health care concerns.” Id. at 123.
Smart also showed that other language in AR 850-04 supported his
interpretation. He pointed to AR 850-04(IV)(D)(2), which lists several
exclusions for which CDOC’s grievance procedures do not apply; it states
that “[t]his grievance procedure may not be used to seek review” of the
excluded topics listed. Id. Yet incidents external to a CDOC facility,
including a courthouse, are not part of this exclusions list. Id.
DeCesaro next declared: “Inmates may also file grievances regarding
incidents that occur outside of the facility while they are in the custody of
the CDOC, such as during transport to court appearances or medical visits.”
Aplt. App’x at 117 (citing AR 850-04(IV)(D)(1)-(2)). AR 850-04 supports this
statement because it says the CDOC grievance procedures are available “to
offenders sentenced to the [C]DOC. This includes [C]DOC offenders housed
in private facilities and offenders who have been released to parole,
community, or ISP supervision.” Aplt. App’x at 121 (AR 850-04(IV)(A)(2));
see also Aplt. App’x at 117 (DeCesaro Declaration, at ¶ 10) (citing AR 850-
04(IV)(A)(2)).
DeCesaro further established that Estrada had filed three grievances
on unrelated topics in the year following the shooting, which ranged from
May 1, 2018, to May 30, 2019. Thus, the CDOC grievance system was
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“available” to Estrada, and he utilized it three times in the year following
the courthouse shooting. But, as DeCesaro established, Estrada did not file
a grievance for the courthouse shooting.
By introducing the DeCesaro Declaration and attachments, Smart
met his burden of proof on his affirmative defense. He established that
Estrada failed to exhaust the available CDOC administrative remedies,
while simultaneously filing three grievances on unrelated topics.
At this point, the summary judgment burden shifted to Estrada, the
nonmovant, to show that the CDOC regulations did not apply or were not
available. To survive summary judgment, Estrada needed to offer evidence.
But he provided only bare allegations and legal arguments made by his
counsel about the scope of AR 850-04. And he did not make the definitional
challenges to the PLRA that he now raises on appeal. Estrada failed to
attach or cite any evidence or deposition testimony (for example, deposition
testimony from DeCesaro or a Federal Rule 30(b)(6) deposition of CDOC);
his response included as exhibits only an inmate orientation video and
handbook from a CDOC facility. He failed to establish the factual or legal
significance of either exhibit. Nor did he offer his own declaration or
deposition testimony to describe what he received from CDOC regarding the
grievance procedures, when he received it, where he received it, from whom
he received it, or anything else. Indeed, in support of his argument before
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the district court, Estrada effectively provided no summary judgment
evidence.
The district court granted the motion for summary judgment without
holding an evidentiary hearing. It ruled that both the PLRA and CDOC’s
three-step grievance procedures applied to the May 2018 courthouse
shooting, and that Estrada failed to exhaust CDOC’s available
administrative remedies.
On appeal, Estrada argues the May 2018 courthouse shooting is
beyond the scope of both the PLRA, generally, and the CDOC’s specific
three-step grievance process. According to Estrada, a courthouse is not a
prison, so his claim about the courthouse shooting is not “with respect to
prison conditions,” as the scope of § 1997e(a) requires.
II
“We review de novo the district court’s finding of failure to exhaust
administrative remedies.” Little, 607 F.3d at 1249 (quoting Jernigan v.
Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002)).
“Failure to exhaust under the PLRA is an affirmative defense.” Tuckel
v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011). When a defendant moves
for summary judgment based on an affirmative defense, Rule 56 puts the
burden on the defendant to “demonstrate that no disputed material fact
exists regarding the affirmative defense asserted.” Hutchinson v. Pfeil, 105
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F.3d 562, 564 (10th Cir. 1997). “If the defendant meets this initial burden,
the plaintiff must then demonstrate with specificity the existence of a
disputed material fact.” Id. “If the plaintiff fails to make such a showing,
the affirmative defense bars his claim, and the defendant is then entitled to
summary judgment as a matter of law.” Id. Applied to this case, “[o]nce”
Smart “prove[d] that [Estrada] failed to exhaust,” then “the onus f[ell] on
[Estrada] to show that remedies were unavailable to him[.]” Tuckel, 660
F.3d at 1254.
III
First, we must decide whether the district court correctly decided the
exhaustion question, without a hearing, and instead of sending that
question to a jury. Estrada argues the district court usurped the role of a
jury by resolving all disputed issues regarding administrative exhaustion
at summary judgment. Arguing by analogy to a breach of contract claim
decided under state law, Estrada claims that the district court violated Rule
56 by resolving all disputes. But the CDOC grievance procedures are not a
contract between two parties, nor are they interpreted based on state law.
See Ruggiero v. Cnty. of Orange, 467 F.3d 170, 174 (2d Cir. 2006) (“There is
no indication that Congress intended state law to govern [how we interpret
the PLRA] . . . or that the PLRA’s exhaustion requirement should vary from
state to state.”).
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We affirm the district court’s decision to resolve all disputed issues on
administrative exhaustion, including all disputed facts (if any existed). The
district court correctly noted that our circuit “has not specifically instructed
district courts as to how they should resolve factual disputes in the context
of exhaustion.” Aplt. App’x at 199. We do so now and join “the Second,
[Third,] Fifth, Seventh, Ninth, and Eleventh Circuits and hold that judges
may resolve factual disputes relevant to the exhaustion issue without the
participation of a jury.” Small v. Camden Cnty., 728 F.3d 265, 271 (3d Cir.
2013) (collecting cases).1
Prisoners “have a right to a jury trial on the merits, but this right does
not guarantee resolution by a jury of all factual disputes.” Id. at 269.
Ultimately, “[j]uries decide cases, not issues of judicial traffic control.”
Pavey v. Conley, 544 F.3d 739, 741 (7th Cir. 2008). And “[u]ntil the issue of
exhaustion is resolved, the court cannot know whether it is to decide the
case or the prison authorities are to.” Id.
More fundamentally, “exhaustion is a precondition for bringing suit”
under the plain language of § 1997e(a). Small, 728 F.3d at 269. The PLRA
states: “‘No action shall be brought with respect to prison conditions . . .
1 This holding contains a caveat: The holding applies “as long as the
facts are not bound up with the merits of the underlying dispute.” Id. at 270. In this case, Estrada makes no argument that the merits are intertwined with administrative exhaustion.
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until such administrative remedies as are available are exhausted.’” 42
U.S.C. § 1997e(a) (emphasis added). The term “shall” is a direct command
that we must follow. Smith v. Spizzirri, 144 S. Ct. 1173, 1177 (2024)
(Congress’s “use of the word ‘shall’ ‘creates an obligation impervious to
judicial discretion.’”) (quoting Lexecon Inc. v. Milberg Weiss Bershad Hynes
& Lerach, 523 U.S. 26, 35 (1998)). Thus, to allow a § 1983 claim to reach a
jury trial before determining the status of administrative exhaustion would
violate the statute’s plain language.
Estrada also claims the district court erred by failing to hold an
evidentiary hearing. Ordinarily, if there are disputed issues of fact, a
district court should hold an evidentiary hearing before granting summary
judgment on the defense of failure to exhaust administrative remedies. In
this case, however, Estrada offered “no evidence to support” his
“allegation[s]” about the CDOC grievance procedures “beyond the
allegation[s] [themselves].” May v. Segovia, 929 F.3d 1223, 1235 (10th Cir.
2019). While Estrada attached a CDOC prison orientation video and inmate
handbook to his summary judgment response, they stayed inert without
testimony or a declaration to give them any force. The mere existence of a
video and an inmate handbook tells us nothing about whether the CDOC
grievance procedures were available for Estrada to complain about the
courthouse shooting.
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To avoid summary judgment, a nonmovant must offer evidence, not
bare allegations. See Fed. R. Civ. P. 56(c)(1)(A) (setting forth how a party
introduces summary judgment evidence, including depositions and
declarations, to support a factual assertion). Applied here, that standard
means once Smart introduced evidence showing that Estrada had filed
three other grievances but none about the May 2018 shooting, the burden
shifted to Estrada to “do more than refer to allegations of counsel contained
in a brief to withstand summary judgment.” Adams v. Am. Guar. and Liab.
Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (quoting Thomas v. Wichita
Coca–Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992)). “Rather,
sufficient evidence (pertinent to the material issue) must be identified by
reference to an affidavit [or declaration],2 a deposition transcript or a
specific exhibit incorporated therein.” Id. (quoting Thomas, 968 F.2d at
1024); accord Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1112 (10th
Cir. 2007) (emphasizing that “bald allegations cannot preclude summary
judgment” in a PLRA exhaustion case).
In sum, in a prisoner case involving the defense of failure to exhaust,
a district court should, before trial, resolve all disputed issues of law and
fact that are not intertwined with the merits of the claim. If the plaintiff
28 U.S.C. § 1746 (making affidavits and declarations effectively 2
synonymous). 12 Appellate Case: 23-1189 Document: 010111079946 Date Filed: 07/16/2024 Page: 13
establishes a disputed issue of material fact, an evidentiary hearing should
usually be held. If the district court declines to conduct a hearing, it should
explain why one is unnecessary. But if neither party requests an
evidentiary hearing, a district court is not obligated to raise the topic sua
sponte. Here, the district court correctly followed this procedure.
IV
We now turn to whether Estrada forfeited his challenge to the scope
of the PLRA. Estrada argues that the PLRA does not apply to a courthouse
shooting – or any location outside the prison walls. This argument is new
because Estrada did not make it before the district court when he opposed
Smart’s motion for summary judgment. Rather, he focused his argument on
the scope of the CDOC regulation. See Aplt. App’x at 200.
However, we will consider this argument on appeal because the
district court thoroughly analyzed the scope of the PLRA in its order
granting summary judgment. We set aside our general rules on forfeiture
and waiver when an issue has been “passed upon,” meaning “the district
court explicitly [has] consider[ed] and resolve[d] an issue of law on the
merits.” Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 991–92 (10th Cir.
2019) (quoting United States v. Verner, 659 F. App’x 461, 466 (10th Cir.
2016)); United States v. Hernandez-Rodriguez, 352 F.3d 1325, 1328 (10th
Cir. 2003) (“We conclude that when the district court sua sponte raises and
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explicitly resolves an issue of law on the merits, the appellant may
challenge that ruling on appeal on the ground addressed by the district
court even if he failed to raise the issue in district court. In such a case,
review on appeal is not for ‘plain error,’ but is subject to the same standard
of appellate review that would be applicable if the appellant had properly
raised the issue.”). The district court extensively considered the scope of the
PLRA, along with the CDOC grievance procedure, when it granted
summary judgment in favor of Smart. Because it “passed upon” the question
of the scope of the PLRA, we therefore reach Estrada’s PLRA challenge
raised on appeal.
V
Next, we must examine the scope of the PLRA. That is, whether and
how it applies to Estrada’s § 1983 claim for excessive use of force based upon
a courthouse shooting.
A
Regarding the applicability of the PLRA, Estrada’s appellate briefing
centers around a geography-based test. Under his proposed test, the PLRA’s
exhaustion requirement applies only to a claim for relief “related to the
conditions of . . . confinement in prison.” Aplt. Br. at 11. In turn, he contends
that because a courthouse is not a prison, the PLRA does not apply to the
May 2018 courthouse shooting.
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In evaluating Estrada’s geography-based test, we start with the text
of § 1997e(a). Wichita Ctr. for Graduate Med. Educ., Inc. v. United States,
917 F.3d 1221, 1224 (10th Cir. 2019) (“As always, we start with the plain
meaning of the text.”). Congress did not define the terms in § 1997e(a). But
a related provision of the PLRA, 18 U.S.C. § 3626(g)(2), defines a “civil
action with respect to prison conditions” broadly as “any civil proceeding . .
. with respect to the conditions of confinement or the effects of actions
by government officials on the lives of persons confined in prison[.]”3
(emphasis added). The district court cited this definition when it concluded
that the PLRA applied to a courthouse shooting, and it explained that we
have cited § 3626(g)(2) in support of applying the PLRA to a prisoner case
regarding activity outside a prison. Aplt. App’x at 201 (discussing
Dmytryszyn v. Hickox, 172 F.3d 62, *1 (10th Cir. 1999) (unpublished)).
We agree with the district court’s use of the § 3626(g)(2) definition to
interpret “prison conditions” in § 1997e(a). Our court has cited § 3626(g)(2) in
a case concluding that § 1997e(a) reaches a prisoner “challenging the amount
3 “The PLRA is codified in scattered sections of Titles 11, 18, 28, and
42 of the United States Code[.]” Green v. Young, 454 F.3d 405, 409 n.1 (4th Cir. 2006). The PLRA’s exhaustion requirement, § 1997e(a), is in Title 42 of the U.S. Code, while § 3626(g)(2) is in Title 18. Both sections were enacted at the same time in the same law: the Omnibus Consolidated Recissions and Appropriations Act of 1996, PL 104–134, April 26, 1996, 110 Stat. 1321.
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of compensation he received for work performed outside the prison.”
Dmytryszyn, 172 F.3d at *1. In another case, we applied § 1997e(a) to “an
assault at [a] county courthouse” where the plaintiff was in custody, Forbes v.
Garcia, 696 F. App’x 381, 382 (10th Cir. 2017) (unpublished) – a nearly
identical fact pattern to this case. Thus, although unpublished, we have in two
prior cases considered these two statutory provisions together to reject the
strict geographic test proposed by Estrada.
Estrada counters that the Supreme Court has cast doubt on importing
the language in § 3626(g)(2) to define the scope of § 1997e(a). We do not
sense this same doubt. Rather, the Supreme Court “express[ed] no
definitive opinion on the proper reading of § 3626(g)(2)” as applied to
§ 1997e(a). Porter, 534 U.S. at 525 n.3.
Our marrying together of § 3626(g)(2) with § 1997e(a) aligns with
three other Circuits, who have held it is proper to import the § 3626(g)(2)
definition to the § 1997e(a) exhaustion requirement. We agree with them
that both statutes “are part of the same legislation with the same
overarching objectives,” and “it makes good sense to assume that a
definition provided by Congress in one statute applies to another related
statute.” Smith v. Zachary, 255 F.3d 446, 449 (7th Cir. 2001); see also
Ruggerio, 467 F.3d at 175 (same); Witzke v. Femal, 376 F.3d 744, 752–53
(7th Cir. 2004) (same); Alexander S. v. Boyd, 113 F.3d 1373, 1381 (4th Cir.
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1997), abrogated on other grounds by Martin v. Hadix, 527 U.S. 343 (1999)
(same).
Estrada repeatedly cites the Seventh Circuit’s decision in Witzke to
argue that the phrase “prison conditions” includes only the area inside a
prison. Aplt. Br. at 22—24. We agree that Witzke is persuasive, but it does
not help Estrada in this appeal.
In Witzke, a prisoner alleged that his claim was not “with respect to
prison conditions” under § 1997e(a) because it involved “his treatment as a
probationer participating in rehabilitation programs” and in a halfway
house. 376 F.3d at 749–50; see id. at 750 (“Mr. Witzke contends that he is
not complaining of prison conditions. Rather, he maintains that the alleged
events took place while he was a probationer participating in probationary
programs; therefore, he continues, he is not complaining about prison
conditions but about his treatment while he was a probationer. Such
allegations are, in his view, pre-incarceration claims.”). The Seventh Circuit
rejected the prisoner’s arguments on scope. It first relied on the broad
definition in § 3626(g)(2) and then observed that the term “prison” is also
broadly defined in the PLRA as “any Federal, State, or local facility that
incarcerates or detains juveniles or adults accused of, convicted of,
sentenced for, or adjudicated delinquent for, violations of criminal law.” Id.
at 752 (quoting 18 U.S.C. § 3626(g)(5)); see also Jackson v. Johnson, 475
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F.3d 261, 266 (5th Cir. 2007) (favorably discussing Witzke). Like the court
in Witzke, we conclude the § 3626(g)(2) definition applies to the PLRA and
aids in our decision to reject Estrada’s strict geography test.
B
For Estrada, on the day of the May 2018 courthouse shooting, the
Logan County courthouse functioned as a “prison.” It was a “local facility”
that “detains” inmates, like Estrada, “accused” or “convicted” of “violations
of criminal law[.]” 18 U.S.C. § 3626(g)(5). Estrada was a prisoner in CDOC
custody at the time he was shot; he was fully restrained, shackled, and
under the control of armed CDOC officers inside the courthouse. He was
only at the courthouse temporarily and only for a hearing in another
Colorado state criminal case. Likewise, he was transported there (and also
shot) by a CDOC officer. And, finally, but-for the shooting, he would have
been transported back to the Logan County jail from the courthouse in
CDOC custody.
It is important to our holding that every case fact fits under CDOC’s
umbrella. When the shooting happened, Estrada was in CDOC custody and
Smart was acting as a CDOC officer. This posture distinguishes this case
from the Second Circuit case Estrada relies on, Hubbs v. Suffolk Cnty.
Sheriff’s Dep’t, 788 F.3d 54 (2d Cir. 2015).
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In Hubbs, the plaintiff sued the sheriff’s deputies under § 1983 for
beating him in a holding cell inside a courthouse. Id. at 57. The Second
Circuit reversed summary judgment, but not because of the geographic
location of the courthouse. Rather, the sheriff’s deputies (defendants) did
not adduce sufficient evidence to establish the exhaustion affirmative
defense at the summary judgment stage. Id. at 56–57. The available
grievance procedure in that case stated it did not apply to issues and events
outside of the warden’s control, and the defendants’ summary judgment
filings failed to establish that the deputies fell within the warden’s chain of
command. Id. at 59–61. As a result, the Second Circuit determined, on the
limited record before it, “no administrative remedies were available to
[plaintiff], and there was thus nothing for him to exhaust.” Id. at 61. Here,
in contrast, Estrada was a CDOC inmate and Smart was a CDOC officer.
As a result, CDOC’s grievance procedures applied.
Again, whether the PLRA applies is not dependent strictly and solely
upon geography but on whether a prisoner is confined in any jail, prison, or
other correctional facility. Congress used the term “any” in § 1997e(a). “The
term ‘any’ ensures that the definition has a wide reach[.]” United States v.
Hutchinson, 573 F.3d 1011, 1022 (10th Cir. 2009) (quoting Boyle v. United
States, 556 U.S. 938, 944 (2009)); see also Nelson v. United States, 40 F.4th
1105, 1115 (10th Cir. 2022) (holding that “the word ‘any’ has an expansive
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meaning, that is, ‘one or some indiscriminately of whatever kind’”) (quoting
United States v. Gonzales, 520 U.S. 1, 5 (1997)). Here, the word “any”
expands a list of three nouns already listed disjunctively, i.e., “any jail,
prison, or other correctional facility[.]” § 1997e(a). “Equally broad is the
phrase ‘with respect to.’” Pharm. Care Mgmt. Ass’n v. Mulready, 78 F.4th
1183, 1205 (10th Cir. 2023). The phrase “with respect to prison conditions”
is therefore “unmistakably broad[.]” Id.
“Time and again,” the Supreme Court has “refus[ed] to add unwritten
limits onto [the PLRA’s] rigorous textual requirements” and “reject[ed]
every attempt to” narrow the PLRA. Ross v. Blake, 578 U.S. 632, 639 (2016).
In fact, Ҥ 1997e(a) mandates initial recourse to the prison grievance process
even when a prisoner seeks . . . a remedy not available in that process[.]”
Porter, 534 U.S. at 525 n.4 (describing the holding in Booth v. Churner, 532
U.S. 731, 741 (2001)).
We are bound to adhere to this clear guidance. No federal Circuit has
adopted Estrada’s narrow reading of the PLRA; instead, our sister Circuits
have all determined the scope of the PLRA is broadly construed, as we do
again in this case. See, e.g., Ruggiero, 467 F.3d at 174 (joining “[t]wo other
courts of appeals” in reading the phrase “any jail, prison, or other
correctional facility” within § 1997e “expansively”) (first citing Witzke, 376
F.3d at 744; and then citing Alexander S. v. Boyd, 113 F.3d 1373 (4th Cir.
20 Appellate Case: 23-1189 Document: 010111079946 Date Filed: 07/16/2024 Page: 21
1997), abrogated on other grounds by Martin v. Hadix, 527 U.S. 343 (1999));
id. at 175 (“By referring to ‘prisoners,’ Congress placed a constraint on suits
filed by all litigants who could be characterized as prisoners, regardless of
the type of facility in which they are imprisoned.”).
In Porter, the Supreme Court addressed the phrase “prison
conditions” in § 1997e(a) and determined that it “applies to all inmate suits
about prison life, whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some other wrong.” 534
U.S. at 532. Porter did not provide a geographical dimension to this holding
and did not cabin its reach. Rather, Porter held: “We here read the term
‘prison conditions’ not in isolation, but ‘in its proper context.’ The PLRA
exhaustion provision is captioned ‘Suits by prisoners’; this unqualified
heading scarcely aids the argument that Congress meant to bi-sect the
universe of prisoner suits.” Id. at 527–28 (citations omitted).
Estrada’s appeal also runs contrary to another holding in Porter. In
his Reply Brief, he claims that “construing the text to impose a temporal
limit (rather than a geographical limit) does not withstand scrutiny.” Reply
Br. at 10. But Porter held that it is “plausible that Congress inserted ‘prison
conditions’ into the exhaustion provision simply to make it clear that
preincarceration claims fall outside § 1997e(a), for example, a § 1983 claim
against the prisoner’s arresting officer.” 534 U.S. at 518. Although the
21 Appellate Case: 23-1189 Document: 010111079946 Date Filed: 07/16/2024 Page: 22
temporal test may limit the statute’s reach, nothing indicates that Congress
intended courts to add a geographic limitation.
C
Another reason we determine the PLRA’s scope broadly is because
narrowing it to only apply within the prison walls would subvert a major
purpose of the PLRA: to improve the overall conditions of confinement by
drawing immediate attention to prisoner treatment issues as they occur.
Rapid reporting allows corrections officers and officials to address problems
quickly, not months or years later following the outcome of a lawsuit.
For example, in this case, if Estrada had timely pursued the three-
step grievance process regarding the courthouse shooting, he would have
alerted prison officials that CDOC officers perhaps need additional training
on the appropriate tactics and means to prevent prisoners in custody from
escaping a courthouse. Or, at the very least, his grievances would have
drawn CDOC’s attention to Smart, who shot a fully restrained prisoner
three times without any attempt to use a taser or other lesser force.
Estrada’s unwarranted shooting “by a corrections officer may be reflective
of a systemic problem traceable to poor hiring practices, inadequate
training, or insufficient supervision.” Id. at 530; see also Ruggerio, 467 F.3d
at 178 (explaining the importance of the “larger interests at stake under the
PLRA” beyond the prisoner’s federal lawsuit).
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Carving out a wide exception for all incidents that happen anywhere
beyond the boundary of a prison would unravel the PLRA’s blanket
coverage. As oral argument in this case demonstrated, these gaps in
coverage would cover far more than courthouse shootings. When pressed,
Estrada’s counsel could not defend an objective test based on geography
(and, in fact, disclaimed proposing a geographic test for the PLRA, at one
point) or refute that if we adopted Estrada’s interpretation of the PLRA, all
transportation of all prisoners to or from prisons would be deemed outside
the zone of the PLRA. Such gaps would be significant; prisoners routinely
are transported from prison to other correctional facilities, medical
appointments, or courthouses.
Estrada’s geography-based test is also contrary to the history and
statutory context of the PLRA. See Ross, 578 U.S. at 640 (“So too, the history
of the PLRA underscores the mandatory nature of its exhaustion regime.”).
Congress passed the PLRA for a variety of reasons, including to “reduce the
‘disruptive tide of frivolous prisoner litigation.’” Tuckel, 660 F.3d at 1252
(quoting Woodford v. Ngo, 548 U.S. 81, 97 (2006)). The goal was “fewer and
better prisoner suits.” Jones, 549 U.S. at 203. Congress also sought “to
eliminate unwarranted federal-court interference with the administration
of prisons,” Woodford, 548 U.S. at 93, and “to . . . afford[ ] corrections
23 Appellate Case: 23-1189 Document: 010111079946 Date Filed: 07/16/2024 Page: 24
officials time and opportunity to address complaints internally before
allowing the initiation of a federal case.” Porter, 534 U.S. at 525.
Requiring a prisoner to file a grievance is not a technicality; instead,
it is mandatory to ensure prison “efficiency” and “administrative agency
authority” by allowing prison officials to promptly review incidents and
gather evidence, as well as maintain control over the flow of prison life.
Woodford, 548 U.S. at 89 (quoting McCarthy v. Madigan, 503 U.S. 140, 145
(1992)). Administrative exhaustion alerts prison officials to problems as
they occur, avoiding delays and the loss or destruction of evidence.
Exhaustion also gives an agency the “‘opportunity to correct its own
mistakes with respect to the programs it administers before it is haled into
federal court,’ and it discourages ‘disregard of [the agency’s] procedures.’”
Id. (quoting McCarthy, 503 U.S. at 145).
As a result, if a prisoner later files a federal lawsuit, the parties and
the court will have a developed factual record. See id. at 95 (explaining that
“proper exhaustion often results in the creation of an administrative record
that is helpful to the court [because] [w]hen a grievance is filed shortly after
the event giving rise to the grievance, witnesses can be identified and
questioned while memories are still fresh, and evidence can be gathered and
preserved”). From a prisoner’s perspective, administrative exhaustion plays
a critical role in gathering and preserving critical evidence.
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We also must consider the statutory evolution of administrative
exhaustion. The PLRA “differs markedly from its predecessor.” Porter, 534
U.S. at 524. In passing the PLRA, Congress “invigorated” the exhaustion
requirement. Woodford, 548 U.S. at 84 (quoting Porter, 534 U.S. at 524).
Prior to 1980, prisoners faced “no obligation to exhaust administrative
remedies.” Id. Congress then initially “enacted a weak exhaustion
provision” that was “in large part discretionary” and “authorized district
courts to stay actions . . . for a limited time while a prisoner exhausted ‘such
plain, speedy, and effective administrative remedies as are available.’” Id.
(quoting § 1997e(a)(1) (1994 ed.)).
“[T]he new § 1997e(a) removed the conditions that administrative
remedies be ‘plain, speedy, and effective’ and that they satisfy minimum
standards.” Ross, 578 U.S. at 641 (quoting Porter, 534 U.S. at 524). We must
acknowledge that “[w]hen Congress amends legislation, courts must
‘presume it intends [the change] to have real and substantial effect.’” Id. at
641–42 (quoting Stone v. INS, 514 U.S. 386, 397 (1995)). Thus, because
Congress’ intent in passing the PLRA was to broaden and strengthen
administrative exhaustion, we decline to exclude the courthouse shooting
from the reach of the PLRA.
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For all these reasons, we hold that the PLRA’s exhaustion
requirement applies to the May 2018 courthouse shooting of a CDOC inmate
by a CDOC officer.
VI
We now turn to the scope of the CDOC grievance procedures.
Ultimately, we must decide whether AR 850-04 applies to a courthouse
shooting, because “it is the prison’s requirements, and not the PLRA, that
define the boundaries of proper exhaustion.” Jones, 549 U.S. at 218.
The district court ruled that to plead a federal lawsuit based on the
courthouse shooting, Estrada was first required to file Steps 1, 2, and 3
grievances about the shooting, as set forth in CDOC’s AR 850-04. In this
case, like in Jones, which analyzed administrative exhaustion within the
Michigan Department of Corrections, AR 850-04 “describes what issues are
grievable[.]” Jones, 549 U.S. at 206–07. Thus, AR 850-04 defines the scope
of the CDOC grievance procedures.
Here is the language in AR 850-04 that determines whether the three-
step grievance procedures applied to Estrada’s courthouse shooting:
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Aplt. App’x at 123 (highlight added).
In analyzing this language, the district court provided four reasons
why the courthouse shooting is within the scope of AR 850-04. The first
three reasons are based on the highlighted language above, and the fourth
is based on nearby language in AR 850-04:
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1. Including But Not Limited To. First, “AR 850-04 explicitly states that the grievance procedure includes issues that occur within the facility, but is not limited to them.”
2. Employees’ Actions. Second, “the phrase ‘actions by employees and offenders’ is not placed within the previous portion of the paragraph which describes incidents within the facility, indicating that employees’ actions need not necessarily occur within the facility to be covered by AR 850-04.”
3. Not Listed as an Exclusion. Third, the list of exclusions included in AR 850-04 “notably does not include incidents occurring outside the prison, quite clearly implying that the procedure is available for such incidents.”
4. Covers Offenders Outside the Facility. Fourth, “[Smart] points out that CDOC policy does mention covering incidents outside the facility in the context of who the grievance procedure is made available to in AR 850-04(IV)(A)(2). To wit, the AR provides that ‘[t]he grievance procedure is available only to offenders sentenced to the [C]DOC. This includes [C]DOC offenders housed in private facilities and offenders who have been released to parole, community, or ISP supervision.’” (citation omitted).
Aplt. App’x at 197, 204.
We conclude that the district court’s analysis of the scope of the CDOC
regulations is reasonable. The fourth point, on its own, disproves Estrada’s
repeated assertion that nothing suggests the CDOC procedures apply
outside the prison walls.
The Supreme Court has advised that “[w]hen an administrative
process is susceptible of multiple reasonable interpretations, Congress has
determined that the inmate should err on the side of exhaustion.” Ross, 578
U.S. at 644. In Ross, the Supreme Court expressly held that “new § 1997e(a)
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removed the conditions that administrative remedies be ‘plain, speedy, and
effective’ and that they satisfy minimum standards.” Id. at 641 (quoting
Porter, 534 U.S. at 524). As a result, a prisoner is not excused from the duty
to exhaust all administrative remedies by pointing to a “reasonable mistake
about the meaning of a prison’s grievance procedures.” Id.; see also Porter,
534 U.S. at 525 n.4 (“[T]he PLRA establishes a different regime. For
litigation within § 1997e(a)’s compass, Congress has replaced the ‘general
rule of non-exhaustion’ with a general rule of exhaustion.”).
Applied to this case, the Supreme Court’s dual guidance in Ross and
Porter is dispositive. The district court’s inquiry was not to choose who, as
between Estrada and Smart, offered a better interpretation of AR 850-04.
Instead, under controlling Supreme Court law, Estrada was required to
show that it would be unreasonable to apply CDOC’s three-step grievance
procedures to the courthouse shooting. Ross, 578 U.S. at 641, 644. This is a
more difficult showing, and Estrada failed to make it. The district court
pointed to four reasons why it is reasonable to apply AR 850-04 to the
courthouse shooting, and we affirm this “reasonable interpretation of the
grievance requirements.” Thomas v. Parker, 609 F.3d 1114, 1118 (10th Cir.
2010).
Ultimately, we affirm the district court’s entry of summary judgment.
We agree that, because Estrada failed to exhaust his § 1983 claim regarding
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the courthouse shooting by following CDOC’s three-step grievance process,
his claim was barred.
VII
Estrada makes a final argument that we decline to reach. Trying to
expand what he argued in response to the summary judgment motion,
Estrada argues on appeal that his claim was not subject to the PLRA based
on an exception. He did not make this argument below. We acknowledge a
“built-in exception to the exhaustion requirement: A prisoner need not
exhaust remedies if they are not ‘available.’” Ross, 578 U.S. at 635–36. This
“unavailability” of administrative remedies exception can take three forms:
1. Dead end: if the administrative process “operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates”;
2. Opaqueness: if it is so “opaque that it becomes, practically speaking, incapable of use”; and
3. Threats or Intimidation: if prison administrators “thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.”
Id. at 643–44; see also May, 929 F.3d at 1234 (same).
Estrada claims on appeal that the opaqueness exception applies here,
because no prisoner, including him, could determine that AR 850-04 applied
to a courthouse shooting. But this new argument was never presented to
the district court, and we decline to reach it. As we have repeatedly held,
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we “deem arguments that litigants fail to present before the district court
but then subsequently urge on appeal to be forfeited.” Havens v. Colo. Dep’t
of Corr., 897 F.3d 1250, 1259 (10th Cir. 2018). The district court specifically
noted that it did not analyze opaqueness because Estrada did not argue it.
Aplt. App’x at 208.
In addition, failure to argue plain error on appeal waives the issue.
United States v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019) (“When an
appellant fails to preserve an issue and also fails to make a plain-error
argument on appeal, we ordinarily deem the issue waived (rather than
merely forfeited) and decline to review the issue at all—for plain error or
otherwise.”). In this case, Estrada argued plain error on appeal, but he
waited until the reply brief, affording Smart no opportunity to respond. We
“need not decide whether” raising plain error for the first time in a reply
“avoids waiver because [Estrada’s] argument is insufficient.” Hayes v.
SkyWest Airlines, Inc., 12 F.4th 1186, 1201 (10th Cir. 2021). Estrada fails
to show it is “clear or obvious that the district court should have” applied
the opaqueness exception when he “did not present” this argument – or any
probative evidence supporting it – at summary judgment. Id.
VIII
The district court’s entry of summary judgment against Estrada is
AFFIRMED.