Date: 07-12-2019

Case Style:

Case Number: 17-1458

Judge: McHugh

Court: United States Court of Appeals for the Tenth Circuit on appeal from the District of Colorado (Denver County)

Plaintiff's Attorney: Anthony Balkissoon (Amir H. Ali and Joshua Freiman on the briefs), Roderick &
Solange MacArthur Justice Center, Washington, D.C., for Appellant.

Defendant's Attorney: Karl L. Schock, Assistant United States Attorney (Robert C. Troyer, United States
Attorney, with him on the brief), Denver, Colorado, for Appellee.

Description: Billy F. May, a former federal prisoner, brought this action in federal district
court under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Mr. May
claims he was denied his due process rights as a prisoner when he was quarantined
without a hearing during a scabies infestation at the prison. The magistrate judge
granted Mr. Segovia summary judgment on two issues: first, that the exhaustion
requirement of the Prison Litigation Reform Act (“PLRA”) applies to Mr. May, and
second, that there is no genuine issue of material fact as to the availability of
administrative remedies. Mr. May appealed to contest both conclusions. Mr. Segovia
opposes Mr. May’s appeal and raises two alternative grounds for affirmance that Mr.
Segovia raised below but the magistrate judge did not reach.
For the reasons stated, we affirm the magistrate judge’s conclusions that the
PLRA exhaustion requirement applies to Mr. May and that there is no genuine issue
of material fact as to whether administrative remedies were available to him. Because
we affirm the judgment below, we need not and do not reach Mr. Segovia’s
alternative arguments.
I. BACKGROUND
At the time this action began, Mr. May was a prisoner in the Federal Prison
Camp in Florence, Colorado. The Federal Prison Camp periodically “experienced
chronic outbreaks of scabies, a parasitic infection of the skin caused by scabies
mite[s],” and one such outbreak occurred while Mr. May was imprisoned there.
Appellant’s App. at 16–17 (internal citation omitted). Scabies is a “highly contagious
and communicable disease” that is transmitted by sharing “clothing, bedding, or
towels,” and “through skin-to skin contact.” Id. at 16. Individuals infected with
scabies develop itchy skin as a symptom, but that symptom may not present for as
many as six weeks after the disease is contracted. Due to that delay, it was the
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prison’s policy to treat both “symptomatic inmates and asymptomatic ‘close
contacts,’ namely cellmates.” See id. Scabies can be treated either orally (with
Ivermectin) or with a skin cream (permethrin cream).
When scabies broke out at the prison in January 2015, the prison required
every inmate to take Ivermectin or, if they refused for any reason, to be quarantined
in the Special Housing Unit (the “SHU”). Mr. May refused to take the Ivermectin
because “he previously suffered an allergic reaction” to the drug. Appellant’s App. at
17. Due to that refusal, on January 8, 2015, then camp administrator Juan Segovia
ordered Mr. May quarantined in the SHU and treated with permethrin cream “until
medically cleared by FPC medical staff.” Id.
For an unspecified reason, Mr. May was initially unable to obtain “the
appropriate forms” to file an administrative grievance while confined in the SHU. See
id. at 18, 25. Although it is unclear from the record how long he lacked access to
those forms, the record reflects that Mr. May ultimately filed five grievances before
he was medically cleared to leave the SHU on February 4, 2015. Mr. May filed an
additional twenty-four grievances between the day he left the SHU and his ultimate
release from prison in November 2015. None of the twenty-nine grievances “dealt
with [Mr. May’s] placement in the SHU, conditions in the SHU, or the denial of a
hearing upon his placement in the SHU.” Id. at 18.
On February 27, 2015, and while still incarcerated, Mr. May filed a pro se
prisoner complaint in federal district court. Among other things, Mr. May alleged
that the prison had not “follow[ed] the due process procedures outlined by the
4
Supreme Court” when, “for disciplinary purposes,” it placed him in the SHU for
refusing to take Ivermectin. See Appellee’s Suppl. App. at 4. On March 16, “[a]t the
[district] court’s direction to refile using the appropriate form,” Mr. May filed his
First Amended Complaint (“FAC”). Appellant’s App. at 14. He made essentially the
same allegations—again asserting that the prison had not provided him with a hearing
and had not followed the “due process procedures outlined by the Supreme Court,”
see Appellee’s Suppl. App. at 16—but now framed them as Bivens claims.1 The
district court dismissed some of Mr. May’s claims not relevant here and referred the
remainder to a magistrate judge.
In April 2015, Mr. May moved for summary judgment. The government filed
its response in opposition to Mr. May’s summary judgment motion in June. Attached
to that response as Exhibit C was a declaration from Mr. Segovia—who was not yet a
named defendant—that stated Mr. Segovia had “made the decision to place” Mr. May
in the SHU. Id. at 37–38. In July, Mr. May moved to file a second amended
complaint (the “SAC”) to add Mr. Segovia as a defendant. Although Mr. May filed
that motion in July, the court did not grant it until January 19, 2016, two months after
Mr. May had been released from custody.
The magistrate judge construed the SAC as raising three constitutional claims
and dismissed two of those claims. Mr. May has not appealed those rulings. The
1 A Bivens claim is a claim for money damages against federal officials or
employees who participated in unconstitutional conduct. See Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 396 (1971).
5
magistrate judge denied the government’s motion to dismiss the Bivens claim based
on procedural due process against Mr. Segovia; Mr. Segovia then moved for
summary judgment. The magistrate judge ultimately granted that motion, concluding
that Mr. May was subject to the PLRA and had not exhausted his administrative
remedies. In doing so, the magistrate judge also determined there was no genuine
issue of material fact that administrative remedies were not “available” to Mr. May.
Mr. May now appeals both of those rulings, arguing the PLRA does not apply
to him because he was not a prisoner at the time he filed his operative complaint—the
SAC—and even if the PLRA does apply, there is a genuine issue of material fact as
to whether administrative remedies were available to him, rendering summary
judgment improper. Mr. May does not dispute the magistrate judge’s determination
that he did not exhaust available administrative remedies.
In opposition to Mr. May’s appeal, Mr. Segovia raises two additional issues he
argued below but that the magistrate judge did not reach: first, whether this court
recognizes a Bivens claim based on procedural due process, and second, if it does,
whether Mr. Segovia is entitled to qualified immunity. Because we affirm the
magistrate judge’s decision on the same grounds relied upon by the magistrate judge,
we do not reach Mr. Segovia’s alternative arguments.
II. DISCUSSION
The PLRA states: “No action shall be brought with respect to prison conditions
. . . 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). Any
6
prisoner who seeks to bring a claim involving “general circumstances or particular
episodes” of prison life, see Porter v. Nussle, 534 U.S. 516, 532 (2002), must first
exhaust the administrative remedies available to him in prison, Jones v. Bock, 549
U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under the
PLRA . . . .”). Mr. May argues the PLRA exhaustion requirement does not apply to
him because his Second Amended Complaint was deemed filed in January 2016, two
months after he had been released from prison. Alternatively, he argues that even if
the PLRA does apply, there is a genuine dispute of material fact whether any
administrative remedies were available to him, which renders the grant of summary
judgment improper.
We first address the applicability of the PLRA and conclude it does apply to
Mr. May. We next review the magistrate judge’s determination that there is no
genuine issue of material fact concerning the availability of administrative remedies
and affirm its decision.
A. The Applicability of the PLRA
Questions of statutory interpretation, like the proper interpretation of the
PLRA, are pure questions of law that we review de novo. See In re Taylor, 899 F.3d
1126, 1129 (10th Cir. 2018). The text of the PLRA establishes a temporal
relationship between the exhaustion requirement and any prisoner’s suit. “No action
shall be brought,” it says, “until such administrative remedies as are available shall
be exhausted.” 42 U.S.C. § 1997e(a) (emphasis added). Because an action is brought
or “commenced by filing a complaint with the court,” see Fed. R. Civ. P. 3, a plain
7
reading of the PLRA could require exhaustion so long as the plaintiff was a prisoner
when the initial complaint was filed. But the Supreme Court’s decision in Jones v.
Bock offers a more nuanced interpretation of the “no action shall be brought”
language.
1. Jones v. Bock
In Jones, the Court considered consolidated PLRA cases. See 549 U.S. at
204-11. The Sixth Circuit had interpreted the PLRA to create three somewhat novel
procedural rules: first, that exhaustion was a pleading requirement rather than an
affirmative defense; second, that PLRA exhaustion required full exhaustion of
administrative remedies for “each individual later named in the lawsuit”; and third,
that when unexhausted and exhausted claims are both included in the same suit, a
“total exhaustion” rule applies, requiring the dismissal of the whole action, not just
the unexhausted claims. Id. at 204–06. The Court rejected each of these rules because
“courts should generally not depart from the usual practice under the Federal Rules”
unless the PLRA expressly indicates otherwise. See id. at 212 (explaining that the
PLRA’s “silence” on a procedural issue “is strong evidence that the usual practice”
under the Federal Rules “should be followed”).
In its discussion of the third issue—the total exhaustion rule—the Court noted
that the “no action shall be brought” language is common in statutes of limitation and
is not used in that context to dismiss whole actions because of the inclusion of an
untimely claim. Id. at 220–21. “As a general matter, if a complaint contains both
good and bad claims, the court proceeds with the good and leaves the bad.” Id. at
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221. The Supreme Court explained that a total exhaustion rule departs from the usual
practice under the Federal Rules by reading “action” literally, rather than
understanding it in context of normal practice under the Federal Rules. Thus, with the
Supreme Court’s clarifying interpretation, the PLRA’s imperative is properly
understood to apply to claims and not entire actions.
The question under Jones, then, is when Mr. May’s due-process claim—the
only claim before us—first entered the litigation. If Mr. May brought this claim prior
to his release from prison, the PLRA requires him to exhaust it.
Accordingly, there are three complaints that could have introduced the claim
into the litigation here. First, because the due process allegations were included in the
initial complaint, we could conclude it is the operative complaint for determining
whether the PLRA applies. Second, Mr. May repackaged his due process allegation
as a Bivens action in the FAC, which might be significant for PLRA purposes. The
third complaint of relevance here is the SAC, which Mr. May contends is the proper
focal point of our inquiry. According to Mr. May, adding Mr. Segovia as a defendant
gives rise to a new claim under the PLRA. We address each of these pleadings in
turn.
2. The Initial Complaint
As previously explained, Mr. May alleged in his original complaint that the
prison had not “follow[ed] the due process procedures outlined by the Supreme
Court” when, “for disciplinary purposes,” it placed him in the SHU for refusing to
take Ivermectin. See Appellee’s Suppl. App. at 4. Because Mr. May was incarcerated
9
when the initial complaint was filed, any claim raised in it must be exhausted under
the PLRA. Because this complaint first introduced the due process claim, exhaustion
is required.
3. The First Amended Complaint
Mr. May restyled his due process claim as a Bivens claim in his First Amended
Complaint, filed before his release on March 16, 2015. The Bivens claim, however,
contained essentially the same allegations as the initial complaint and, thus, simply
provides a mechanism for the collection of damages for the previously-alleged due
process violation.
But, even if we assume Mr. May’s repackaging of his allegations under Bivens
created a new claim for purposes of the PLRA exhaustion requirement, the claim was
“brought,” at the latest, in his FAC, eight months before his release. Because
Mr. May initially brought his due-process claim while he was still a prisoner, the
PLRA applies to that claim and requires that it be exhausted before a federal court
may consider it.
Mr. May contends, however, that the initial complaint and the FAC are no
longer of any relevance because they were superseded by the SAC. To hold
otherwise, Mr. May argues, would impermissibly “‘depart from the usual practice
under the Federal Rules,’” see Appellant’s Br. at 12 (quoting Jones, 549 U.S. at 212)
because “[i]t is well established that when a plaintiff amends his complaint under
[Rule] 15, the amended complaint ‘supersedes the original and renders it of no legal
effect.’” Id. at 13 (quoting Davis v. TXO Prod. Corp., 929 F.2d 1515, 1517 (10th Cir.
10
1991)). According to Mr. May, the SAC superseded his previous complaints when it
was deemed filed in January 2016. Because the filing occurred after his release, he
argues that, for the purposes of the exhaustion requirement, his prisoner status must
be determined at that point. But Mr. May overreads our precedents.
It cannot be correct that an amended complaint renders the original complaint
“of no legal effect” for all purposes or else Rule 15(c) would be null. That rule states
that “[a]n amendment to a pleading relates back to the date of the original pleading
when . . . the amendment asserts a claim or defense that arose out of the conduct,
transaction or occurrence set out—or attempted to be set out in the original
pleading.” Fed. R. Civ. P. 15(c)(1)(B). Rule 15(c) expressly contemplates an unsuperseded
original complaint as to timing for, at the very least, statutes of limitation,
see Rule 15(c)(1)(a), and for determining when an action was commenced or a claim
was brought because nothing in Rule 15(c) indicates that it displaces Rule 3. Instead,
even when a complaint is properly amended and the conditions of Rule 15(c) are met,
the amended complaint must still relate back to the original complaint for some
purposes. The amended complaint, as the operative complaint, supersedes the
original complaint’s allegations but not its timing.
When amended complaints are so understood, it becomes clear why Mr. May’s
argument that “the plaintiff’s operative complaint controls the analysis for a statutory
exhaustion requirement” is likewise meritless. See Appellant’s Br. at 15. Mr. May
first points to Mathews v. Diaz, 426 U.S. 67 (1976), to support this proposition.
There, the Supreme Court concluded that a supplemental complaint cured a failure to
11
exhaust under 42 U.S.C. § 405(g). See Diaz, 426 U.S. at 75. Mr. May argues this case
is particularly helpful to his claims because § 405(g) “makes exhaustion a
nonwaivable condition of jurisdiction,” Appellant’s Br. at 15 (quoting Diaz, 426 U.S.
at 75), while “the PLRA exhaustion requirement is not jurisdictional,” id. at 16
(quoting Woodford v. Ngo, 548 U.S. 81, 101 (2006)). But the jurisdictional/nonjurisdictional
distinction cuts against Mr. May because the exhaustion requirement in
§ 405(g), like all jurisdictional exhaustion requirements, includes a pleading
requirement that can be satisfied only by changing the allegations in the complaint.
See Mathews v. Eldridge, 424 U.S. 319, 328 (1976) (explaining that a “complaint was
found jurisdictionally deficient” for failing to exhaust because “it ‘contain[ed] no
allegations that the[ plaintiffs] had even filed an application with the Secretary’”
(first alteration in original) (quoting Weinberger v. Salfi, 422 U.S. 749, 95 (1975))).
In contrast, the PLRA exhaustion requirement is an affirmative defense, not a
pleading requirement. See Jones, 549 U.S. at 216. The question under the PLRA is
the timing of the claim alleged, not the sufficiency of the allegations. Because
superseding allegations cannot change the status of the prisoner at the time he
“brought” the relevant unexhausted claim, Diaz cuts against Mr. May’s argument.
Accordingly, if we consider the initial complaint or the FAC in assessing when
the due process claim was first introduced into the litigation, the PLRA required
Mr. May to exhaust that claim.
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4. The Second Amended Complaint
Mr. May next contends that the SAC is the proper focus here because adding
Mr. Segovia as a defendant gave rise to a new claim under the PLRA. Amendments
that add defendants, he argues, “are categorically treated as commencing a new case
as to the added defendants.” Appellant’s Reply Br. at 9 (quoting Prime Care of Ne.
Kan., L.L.C. v. Humana Ins. Co., 447 F.3d 1284, 1286 (10th Cir. 2006)). According
to his argument, by adding “a completely new defendant,” Mr. May “create[d] a new
cause of action.” Id. (quoting Graves v. Gen. Ins. Corp., 412 F.2d 583, 585 (10th Cir.
1969)). But Mr. May mischaracterizes our decision in Prime Care and fails to
account for Jones’s impact on Graves.
In Prime Care, we addressed whether and how “pleading amendments” filed
after the enactment of the Class Action Fairness Act affected the “commencement
date” of actions filed prior to its enactment. 447 F.3d at 1285–86. We considered
three possible approaches that had been adopted by other federal courts, the third of
which was that post-enactment pleading amendments did not “affect the
commencement date” of pre-enactment actions “if they d[id] not relate back or if they
add[ed] new defendants to the case.” Id. at 1286. This approach was based on the
view that, per Mr. May’s quoted language, amendments adding defendants “are
categorically treated as commencing a new case as to the added defendants.” Id. Far
from accepting that view, however, we explicitly rejected it and did so on the basis
that “an amendment adding a defendant does not necessarily commence a new action
as to that defendant.” Id. at 1286, 1288.
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As to Graves, Mr. May is correct that we concluded that substitution or
addition “of a completely new defendant creates a new cause of action.” 412 F.2d at
585. But there, we were concerned with whether the added or substituted parties had
“notice of the original action.” Id. Mr. Segovia has not alleged that he was not
provided adequate notice, but even if he had, Jones is explicit that notice is not a
concern relevant to the PLRA exhaustion requirement. See 549 U.S. at 218–19. In
Jones, the Supreme Court rejected the Sixth Circuit’s rule requiring prisoners to
identify “each defendant they would later sue[]” in their initial complaint and to
exhaust as to each defendant. Id. The Court acknowledged that the “Sixth Circuit rule
may promote early notice to those who might later be sued, but that has not been
thought to be one of the leading purposes of the exhaustion requirement.” Id. at 219.
Rather, “the primary purpose of a grievance is to alert prison officials to a problem,
not to provide personal notice to a particular official that may be sued.” Id. (quoting
Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004)). Jones teaches that, although
adding or substituting a defendant may create a new claim for some purposes, it does
not do so for purposes of the PLRA exhaustion requirement.
Mr. Segovia argues that this reading of Jones is supported by our usual
application of the Federal Rules. As we explained, under Rule 15(c), an amended
complaint related back to a prior complaint for timing purposes when the amended
complaint “asserts a claim . . . that arose out of the conduct, transaction, or
occurrence set out . . . in the [earlier] pleading.” Fed. R. Civ. P. 15(c)(1)(B).
Although Rule 15(c) typically applies in the statute of limitations context, the Eighth
14
Circuit has concluded that relation back is the “the pertinent threshold question”
when addressing the PLRA’s exhaustion requirement as well. See Foulk v. Charrier,
262 F.3d 687, 696 (8th Cir. 2001). Mr. May’s due process claim in the SAC
unquestionably “arose out of the conduct . . . set out” in the initial complaint and the
FAC. Thus, Mr. Segovia would have us conclude, we look not to when the SAC was
filed but “to the date of the original complaint” to determine Mr. May’s status under
the PLRA. Appellee’s Br. at 19.
Mr. May disagrees and argues that 15(c) does not apply in the exhaustion
context. He first contends that Mr. Segovia cited “no authority in which Rule 15(c)
has been extended to prevent a plaintiff from receiving the ordinary benefits of
amending his complaint. Indeed, allowing a defendant to invoke relation back to tie
plaintiffs to the circumstances at the time of their original complaint would turn the
doctrine’s purpose on its head” because the relation back should “not be applied in a
way that w[ould] produce results inconsistent with its remedial purpose.” Appellant’s
Reply Br. at 9 (quoting 6A Charles Alan Wright et al., Federal Practice & Procedure
§ 1508 (3d ed.)). He also argues that applying 15(c) to an amended complaint that
“add[s] a new defendant” is contrary to our usual practice under the Federal Rules
which permits relation back “only to matters relating to the original parties of the
complaint, or to correct a misnomer or a misdescription of [a] defendant, and not to
add or substitute a new party defendant.” Id. at 9–10 (quoting Graves, 412 F.2d at
585). This is not entirely true.
15
In certain specified circumstances, Rule 15(c)(1)(C) expressly allows for
relation back for amendments that “change[] the party or the name of the party
against whom a claim is asserted, ” but at a minimum, Mr. Segovia would be
required to show that he had the requisite notice of the action to allow relation
back. See Fed. R. Civ. P. 15(c)(1)(C). Mr. Segovia has not made a meaningful
argument to this court regarding the satisfaction of the notice requirements of Rule
15(c)(1)(C). For the first time on appeal and in a footnote of his response brief,
Mr. Segovia makes a cursory reference to Rule 15(c)(2), which addresses how the
“notice requirements” of Rule 15(c)(1)(C) “are satisfied” with respect to suits
where a “United States officer . . . is added as a defendant by amendment.” But
Mr. Segovia does not make any arguments as to why that provision would be
applicable in the context of Mr. May’s Bivens claim against him in his individual
capacity. Even if Mr. Segovia had made such meaningful arguments, we need not
decide for the first time on appeal whether he satisfied the notice requirements of
Rule 15(c)(1)(C) to support relation back.2 This is because, even assuming
2 Contrary to the suggestion in the concurrence, we did not decline to dispose
of Mr. May’s case under Rule 15(c)(1)(C) because we agreed with Mr. May that to
do so would be “inconsistent with the remedial purposes of Rule 15(c).” Conc. Op. at
5. Instead, we refused to consider the Rule 15(c)(1)(C) argument because it was not
preserved. Mr. Segovia argued only for the application of Rule 15(c)(1)(B) and (c)(2)
and did so for the first time on appeal. His only argument that 15(c)(1)(C) was
satisfied is based on meeting the requirements of 15(c)(2). So, although we are free to
affirm the district court on any ground adequately supported by the record, we
decline to exercise our discretion to adopt an argument wholly unaddressed by the
parties when arguments properly raised will do.
16
Mr. May is correct that adding Mr. Segovia creates a new claim, making the SAC the
operative complaint, he still cannot prevail.
Mr. May relies on the Ninth Circuit’s opinion in Jackson v. Fong, 870 F.3d
928 (9th Cir. 2017), for the proposition that we look only to the timing of the SAC
when determining the applicability of the PLRA. Fong presents a factual scenario
similar to Mr. May’s. The plaintiff in Fong—Mr. Jackson—was a prisoner in the
midst of his final administrative appeal when he filed his original complaint. Fong,
870 F.3d at 932. Shortly after filing his suit, Mr. Jackson moved to amend his
complaint. But before that motion was granted, as with Mr. May, he was released
from custody. Id. The district court “dismissed [Mr.] Jackson’s First Amended
Complaint with leave to amend,” which Mr. Jackson did, filing a second amended
complaint after he was released from custody. Id. Due to circumstances irrelevant
here, Mr. Jackson eventually filed a third amended complaint. See id.
The defendants moved for summary judgment, arguing that Mr. Jackson had
not exhausted his administrative remedies, and the district court granted the motion.
Id. The Ninth Circuit reversed, holding that “[t]he exhaustion requirement . . . does
not apply to non-prisoners.” Id. at 933. Relying on Jones and circuit caselaw, the
court determined that to require Mr. Jackson to exhaust would “ignore[] the general
rule” that “a supplemental complaint ‘completely super[s]edes any earlier complaint,
rendering the original complaint non-existent and, thus, its filing date irrelevant.’” Id.
at 934 (quoting Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010)).
17
Despite the similar facts, Fong is distinguishable. There, the operative
complaint was “a supplemental complaint within the meaning of Rule 15(d).” See id.
Under Rule 15(d), a plaintiff may amend his complaint to account for “any
transaction, occurrence, or event that happened after the date of the pleading to be
supplemented.” Fed. R. Civ. P. 15(d). It is axiomatic that a supplemental complaint,
filed after the plaintiff has been released from prison and raising claims that
“happened after the date of the pleadings to be supplemented,” would not be subject
to the exhaustion requirement. Such claims would have been “brought” for purpose
of the PLRA by a non-prisoner. As Jones implies, the district court reviewing an
amended complaint filed under Rule 15(d) would have the responsibility, when the
exhaustion defense is raised, to differentiate between claims that are exhausted—or
to which the exhaustion requirement does not apply because they were first brought
after the plaintiff was released from prison—and claims that are unexhausted,
dismissing the latter and allowing the former to proceed. See 549 U.S. at 221–22. But
that is not this case. The SAC was not filed under Rule 15(d) because Mr. May’s
Bivens claim did not arise from transactions or events that occurred after the First
Amended Complaint. Indeed, it is undisputed that his only claim on appeal was first
raised, at the latest, in the First Amended Complaint, which was filed eight months
prior to his release.
But even if we were to agree that Fong is on point, Mr. Segovia contends the
PLRA would still require Mr. May to exhaust his administrative remedies. Fong cited
another Ninth Circuit case—Rhodes v. Robinson—approvingly, and there the Ninth
18
Circuit held that new claims were “brought” for purposes of the PLRA exhaustion
requirement when the supplemental complaint was “tendered” to the court for filing,
not when the court deemed it filed. See Rhodes, 621 F.3d at 1005; see also Ford v.
Johnson, 362 F.3d 395, 400 (7th Cir. 2004) (holding that “an action is ‘brought’ for
purposes of [the PLRA exhaustion requirement] when the complaint is tendered to
the district clerk”); Rothman v. Gregor, 220 F.3d 81, 96 (2d Cir. 2000) (holding that
“the date of the filing of the motion to amend constitutes the date the action was
commenced for statute of limitations purposes” when “the plaintiff seeks to add a
new defendant” (quoting Nw. Nat’l Ins. Co. v. Alberts, 769 F. Supp. 498, 510
(S.D.N.Y.1991)); Moore v. Indiana, 999 F.2d 1125, 1131 (7th Cir. 1993) (holding
that a motion for leave to amend “tolls the statute of limitations, even though
technically the amended complaint will not be filed until the court rules on the
motion”); Mayes v. AT&T Info. Sys., Inc., 867 F.2d 1172, 1173 (8th Cir. 1989) (per
curium) (adopting the tender rule to determine whether a complaint has been filed for
statutes of limitation purposes). Such an approach is supported by common sense
because “plaintiff[s] ha[ve] no way of controlling or even predicting the time at
which any permission to amend [their complaint] will be granted, and thus no ability
to control the date on which the amended complaint itself may be filed.” See Kane
Cty., Utah v. United States, 934 F. Supp. 2d 1344, 1363 (D. Utah 2013), aff’d in part,
rev’d in part on other grounds and remanded, 772 F.3d 1205 (10th Cir. 2014)
(quoting Nett v. Bellucci, 774 N.E.2d 130, 136 (Mass. 2002)). To permit a prisoner to
avoid the exhaustion requirement simply because the court cannot or does not rule on
19
the prisoner’s motion before he is released undermines the statute, circumventing the
PLRA’s commands through omission.
We have not yet adopted this approach in the Tenth Circuit. Mr. Segovia
argues, for the first time on appeal, that we should do so now.3 Mr. May contends
that a combination of Jones and our circuit precedents forecloses adoption of the
tender rule. Recall that Jones prohibits us from departing “from the usual practice
under the Federal Rules” to make PLRA specific rules unless the PLRA expressly
indicates otherwise. See 549 U.S. at 212. Mr. May argues that our usual practice is
captured by our statement in Murray v. Archambo, 132 F.3d 609, 612 (10th Cir.
1998), that an “amendment that has been filed or served without leave of court or
consent of the defendants is without legal effect.” See Appellant’s Reply Br. at 11
(emphasis added). Mr. May contends that because the SAC had not yet been accepted
3 Although Mr. May does not raise forfeiture, we note that Mr. Segovia did not
argue for the application of the tender rule to the district court. Generally, we “do[]
not consider an issue not passed upon below.” See Singleton v. Wulff, 428 U.S. 106,
120 (1976); Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011) (“[I]f
the theory simply wasn’t raised before the district court, we usually hold it
forfeited.”). But we retain discretion to consider such unraised arguments. Singleton,
428 U.S. at 121 (noting that federal appellate courts have discretion to decide “what
questions may be taken up and resolved for the first time on appeal” based on “the
facts of the individual case”); see also Abernathy v. Wandes, 713 F.3d 538, 552 (10th
Cir. 2013) (holding that “the decision regarding what issues are appropriate to
entertain on appeal in instances of lack of preservation is discretionary”). Here, it
was the district court that first raised Fong in its decision dismissing the complaint,
and so Mr. Segovia did not have an opportunity to raise the tender rule in response.
Under these circumstances, we exercise our discretion to reach Mr. Segovia’s
argument and conclude that, assuming arguendo that Fong governs our analysis, the
exhaustion requirement would nonetheless apply to Mr. May per the tender rule.
20
for filing when it was tendered, it had “no legal effect.” Id. But Murray is
distinguishable.
In Murray, the district court granted a motion to dismiss an entire action
because the plaintiff filed the amended complaint without leave of the court or
consent of the defendants. 132 F.3d at 610–612. The defendants argued that the
dismissal was justified because the “amended complaint st[ood] in place of [the]
original complaint.” Id at 612. We concluded the district court erred because only a
“properly filed” amended complaint could “supersede the original.” Id. Despite the
broad language in Murray, our holding there amounted to no more than that an
improperly filed amended complaint does not have the legal effect of superseding the
allegations in the original complaint for purposes of assessing whether dismissal is
appropriate. Insofar as the phrase “without legal effect” was intended to mean
anything more, it constitutes dicta. Unlike in Murray, Mr. May properly requested
leave to file, but that leave was delayed in coming. And, as discussed above, a
properly filed amended complaint may relate back to the original complaint for some
purposes, including timing generally and statutes of limitation specifically. The
timing of the claims, as opposed to the sufficiency of the allegations, was not before
us in Murray, and our opinion there should not be construed as addressing the timingallegation
distinction. Thus, Murray does not preclude us from adopting the tender
rule and we do so now.
Finally, both parties spill substantial ink on policy arguments. Mr. May argues
that requiring a prisoner to dismiss his original complaint and file a new action would
21
create a procedural anomaly and incentivize inefficient use of judicial resources.
Mr. Segovia contends that looking to the plaintiff’s status when he initially filed the
relevant claim would further the PLRA’s policy goal of reducing meritless lawsuits,
thereby enhancing judicial economy. Jones counsels us to disregard such arguments
when they invite us to depart from the “typical” approach under the Federal Rules.
See 549 U.S. at 216, 224–25. In response to similar policy arguments, the Supreme
Court explained that “the judge’s job is to construe the statute—not to make it
better.” See Jones, 549 U.S. at 216. “The judge ‘must not read in by way of creation,’
but instead abide by the ‘duty of restraint, th[e] humility [to] function as merely the
translator of another’s command.’” Id. (first alteration in original) (quoting Felix
Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527,
533–34 (1947)). Even if we agreed that it is inefficient to require released prisoners
to refile unexhausted claims brought while in prison, our agreement would be
irrelevant without “a clear reason to depart from our more typical claim-by-claim
approach” under the Federal Rules. Id. at 224–25.
In summary, we conclude that Mr. May was a prisoner within the meaning of
the PLRA when he brought his due-process claim, irrespective of which complaint
first introduced his due process claim, and thus, he was required to exhaust any
available administrative remedies as to that claim.
B. The Availability of Administrative Remedies
“We review summary judgment decisions de novo, applying the same legal
standard as the district court.” Tuckel v. Grover, 660 F.3d 1249, 1251 (10th Cir.
22
2011) (quotation marks omitted). “The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Once the moving
party has identified a lack of a genuine issue of material fact, the nonmoving party
has the burden to cite to “specific facts showing that there is a genuine issue for
trial.” See Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 767 (10th
Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
Those specific facts must be supported by “particular parts of materials in the
record,” see Fed. R. Civ. P. 56(c)(1)(A); relying on “mere pleadings” is insufficient,
see Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). We also review de novo the
finding that Mr. May “failed to exhaust his administrative remedies.” Huggins v.
Reilly, 679 F. App’x 679, 681 (10th Cir. 2017) (unpublished) (citing Jernigan v.
Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002)).
The PLRA does not impose an exhaustion requirement unless administrative
remedies are “available.” See Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). Although
a defendant bears the burden of “proving that the plaintiff did not [exhaust his]
administrative remedies,” once the defendant has carried that burden, “the onus falls
on the plaintiff to show that remedies were unavailable to him.” Tuckel, 660 F.3d at
1254. Administrative remedies are deemed unavailable if, among other things,
“prison administrators thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.” Ross, 136 S. Ct. at 1860;
see also Tuckel, 660 F.3d at 1252–53 (“[W]hen a prison official inhibits an inmate
23
from utilizing an administrative process through threats or intimidation, that process
can no longer be said to be ‘available.’”). There is no dispute that Mr. May failed to
exhaust his administrative remedies; the only remaining question is whether those
remedies were available.
The magistrate judge determined there was no genuine dispute of material fact
as to whether administrative remedies were available to Mr. May because he did not
“provide[] facts sufficient” to show that he “was, in fact, denied access to the
administrative grievance process.” Appellant’s App. at 27. Mr. May argues he has
raised a genuine issue of material fact because he “specifically asserted that” prison
officials “intentionally” “black[ed] out the labels . . . of any outgoing mail scanned
causing such mail to be returned undeliverable.” Appellant’s Br. at 23 (quoting Pl.’s
Resp. to Def. Mot. for Summary Judgment at 2). As the nonmoving party, Mr. May
must produce specific facts that show there is a genuine issue of fact as to whether
(1) “the threat[, machination,] or intimidation actually did deter [him] from lodging a
grievance” and (2) “the threat[, machination,] or intimidation would deter a
reasonable inmate of ordinary firmness and fortitude from lodging a grievance.”
Tuckel, 660 F.3d at 1254. Mr. May has not raised a genuine issue of fact as to either
prong.
Mr. May’s sole argument is that he has “specifically asserted” that prison
officials intentionally tampered with the mail processing system to render grievances
undeliverable, and that he “made record of that” allegation by including it in response
to Mr. Segovia’s summary judgment motion. See Appellant’s Br. at 23–24. Mr. May
24
provides no evidence to support this allegation beyond the allegation itself. He has
not even alleged that he attempted to file a grievance about his internment in the
SHU and it was returned as undeliverable. While Mr. May was in the SHU, he filed
five grievances; he does not allege that any of them were returned as undeliverable.
He also fails to make any such allegation as to the other twenty-four grievances he
filed after he left the SHU and before he was released from custody, much less
provide evidence to support that potential allegation. Mr. May further fails to offer
any explanation as to how the grievance process was so broken as to dissuade him
from filing his due process grievance but not enough to dissuade him from filing
twenty-nine other grievances in the same time period.
Because nothing in the record indicates that the administrative process was
unavailable to Mr. May, indeed, because there is evidence to the contrary, we concur
with the magistrate judge’s determination that there is no genuine dispute of material
fact as to the availability of administrative remedies.
III. CONCLUSION
For the reasons stated, we affirm the judgment below.
17-1458, May v. Segovia
BRISCOE, J., concurring.
I concur in the judgment and join except for Part II.A.4 of the majority’s wellreasoned
opinion. I agree with the majority that the exhaustion requirement in the Prison
Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, applies to May’s procedural due
process claim. While I would reach the same result, I would apply the Federal Rules of
Civil Procedure to decide this case rather than the tender rule adopted by the majority.
The PLRA provides that “[n]o action shall be brought with respect to prison
conditions . . . 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).
Under Jones v. Bock, 549 U.S. 199 (2007), as the majority succinctly explains, “the
PLRA’s imperative is properly understood to apply to claims and not entire actions,”
Maj. Op. at 8, and “courts should generally not depart from the usual practice under the
Federal Rules [of Civil Procedure] on the basis of perceived policy concerns” when
applying the PLRA, Jones, 549 U.S. at 212. In this case, as the majority highlights, the
only claim at issue is May’s procedural due process claim. Maj. Op. at 8–9. Therefore,
under Jones, we should determine when May’s procedural due process claim was
“brought” under the PLRA.
I agree with the majority that May “brought” his procedural due process claim
when he filed his initial complaint because, under Federal Rule of Civil Procedure 3, “[a]
civil action is commenced by filing a complaint with the court.” Fed. R. Civ. P. 3; see
Maj. Op. at 8-9. The next question, then, is whether later amendments to the initial
2
complaint alter this conclusion. I respectfully disagree with the majority’s approach
which assumes that the Second Amended Complaint introduces a new claim1 and the
majority’s subsequent decision to apply the tender rule—a judge-made equitable
principle found nowhere in the Federal Rules—to conclude that the “new” claim is
subject to the PLRA’s exhaustion requirement. Instead, I would apply the Federal Rules
to determine whether the Second Amended Complaint relates back to the filing of the
initial complaint.
Before applying the Federal Rules, it is helpful to recall the procedural history of
this case. As is relevant here, the district court ordered May to cure deficiencies in his
initial complaint resulting from his failure to use a standardized prisoner complaint form.
May cured these deficiencies by refiling his initial complaint using the required form (the
“First Amended Complaint”). Both the initial complaint and the First Amended
Complaint named three defendants: George Santini, Frank Cordova, and the Federal
Bureau of Prisons. Both the initial complaint and the First Amended Complaint stated
that Segovia, as the administrator of the Federal Prison Camp, threatened May with
“other action” if he refused to take Ivermectin. App. at 12, 24. Shortly after May filed
the First Amended Complaint, the district court dismissed the Bureau of Prisons as a
defendant, reasoning that suit against the Bureau was barred by sovereign immunity.
1 The majority recognizes that the Second Amended Complaint is not a
supplemental complaint within the meaning of Federal Rule of Civil Procedure 15(d).
Maj. Op. at 17.
3
The record reflects that on May 27, 2015—90 days after May filed his initial
complaint—Juan Segovia executed a sworn declaration in which he declared that he was
responsible for the decision to place May in the Special Housing Unit. See App. at
72-74. In response to this declaration, and presumably the district court’s dismissal of the
Bureau of Prisons as a defendant, May filed the Second Amended Complaint, albeit
without leave of court. The Second Amended Complaint contained nearly identical
allegations as the initial complaint and First Amended Complaint but named only two
defendants: Segovia and Cordova. Given this background, it seems clear that May, a pro
se prisoner, never attempted to add any new claims when he filed his Second Amended
Complaint, but rather sought only to identify the proper defendants as a result of
subsequent developments in the district court.
Federal Rule of Civil Procedure 15(c) governs the relation back of amendments to
the original pleadings. Under Rule 15(c),
(1) When an Amendment Relates Back. An amendment to a pleading relates
back to the date of the original pleading when:
(A) the law that provides the applicable statute of limitations allows
relation back;
(B) the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out—or attempted to be set out—in the
original pleading; or
(C) the amendment changes the party or the naming of the party against
whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within
[90 days of the filing of the relevant pleading], the party to be brought
in by amendment:
(i) received such notice of the action that it will not be prejudiced in
defending on the merits; and
(ii) knew or should have known that the action would have been
brought against it, but for a mistake concerning the proper party’s
identity.
4
(2) Notice to the United States. When the United States or a United States
officer or agency is added as a defendant by amendment, the notice
requirements of Rule 15(c)(1)(C)(i) and (ii) are satisfied if, during the
stated period, process was delivered or mailed to the United States
attorney or the United States attorney's designee, to the Attorney General
of the United States, or to the officer or agency.
Fed. R. Civ. P. 15(c). Whether Rule 15(c)(1)(B) is satisfied “depends on the existence of
a common core of operative facts uniting the original and newly asserted claims,” Mayle
v. Felix, 545 U.S. 644, 659 (2005) (internal quotation marks omitted) (interpreting prior,
but materially analogous, version of Federal Rule of Civil Procedure 15(c)), and we
examine “what the party to be added knew or should have known,” Krupski v. Costa
Crociere S.p.A., 560 U.S. 538, 541 (2010), to determine whether Rule 15(c)(1)(C) is met.
On appeal, Segovia argues that the Second Amended Complaint relates back to the
initial complaint because the amendments arose out of the same conduct, transaction, or
occurrence set out in the initial complaint and he received adequate notice of the
amendments. Segovia Resp. Br. at 18 & n.6. I agree that “the Second Amended
Complaint asserts the same claims as those contained in the original complaint and is
grounded on the same nucleus of operative facts.” Segovia Resp. Br. at 18 (internal
quotation marks and citation omitted). I also agree that Rule 15(c)’s notice requirements
are satisfied, albeit for a different reason than the one advanced by Segovia. While
Segovia briefly states in a footnote that Rule 15(c)’s notice requirements are satisfied in
this case through Rule 15(c)(2), the record reflects that Rule 15(c)(1)(C)’s notice
requirement is clearly satisfied. Based on his sworn declaration, Segovia received actual
notice of the action within 90 days of the filing of the initial complaint, stated that he was
5
the responsible actor behind the decision to move May to the Special Housing Unit, and
after he was named as a defendant he defended the merits of the action, without any
claim or showing of prejudice.2 Therefore, by satisfying all of the requirements of Rule
15(c)(1)(C), the Second Amended Complaint relates back to the filing of the initial
complaint, and thus any claim in the Second Amended Complaint is subject to the
exhaustion requirement in the PLRA. This approach is consistent with both the text of
the PLRA and the Federal Rules of Civil Procedure, Segovia Resp. Br. at 17-20, and
Segovia’s overarching argument on appeal that a prisoner’s status at the time he files the
initial complaint in a civil action determines the applicability of the PLRA’s exhaustion
requirement. I would therefore affirm the district court on this alternative basis.3
The majority appears to disfavor this course because, as May argued on appeal, it
may be inconsistent with the remedial purposes of the Rule 15(c).4 See Maj. Op. at
14–15. Even if this were the case, the same concerns would apply to the tender rule
which, as the majority explains, has its own origins in tolling the statute of limitations for
plaintiffs. Id. at 18–19 (citing cases where courts tolled the statute of limitations upon the
filing of a motion to amend rather than the operative filing date of the underlying
2 Segovia waived any possible affirmative defense based on insufficient service of
process. See Fed. R. Civ. P. 12(h)(1).
3 “This court has discretion to affirm on any ground adequately supported by the
record.” Feinberg v. Comm’r, 916 F.3d 1330, 1334 (10th Cir. 2019) (internal quotation
marks omitted).
4 Nothing in the text of Rule 15(c) disfavors application of the relation back
provision in the manner advocated.
6
pleading). Accordingly, I am not convinced the tender rule, a judge-made equitable
device employed to toll the statute of limitations, should be given precedence over the
plain text of Rule 15(c).
Nonetheless, I agree with the majority that May was required to exhaust his
procedural due process claim and failed to do so. Therefore, for the reasons explained, I
concur.

Outcome: Affirmd

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