by Douglas Ankney

In a maddening decision issued on July 16, 2024, the United States Court of Appeals for the Tenth Circuit managed to dismiss the excessive-force claim of a Colorado prisoner shot by a guard despite being shackled. Conveniently avoiding the merits of Brian Estrada’s suit, the Court decided to stretch the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, to cover his claim, even though he was not shot in prison. The Court also decided to join several sister circuits in allowing a district court to adjudicate whether a prisoner has met the PLRA’s requirement to exhaust administrative remedies and without sending related fact disputes to a jury.

In May 2018, Estrada was transported by three state Department of Corrections (DOC) guards to the Logan County Courthouse for a hearing in a pending criminal case. Though they shackled his hands and ankles to his waist, guards said that he “shuffled across the floor” in an alleged escape attempt. DOC guard Jacob Smart decided not to give chase, though it should have been simple to catch and subdue a “shuffling” restrained prisoner. Nor did he attempt to stop Estrada with a burst from the TASER on Smart’s utility belt. Instead, the guard fired three shots from his gun, striking and injuring the prisoner.

Fortunately, Estrada survived the shooting. He then filed suit in federal court for the District of Colorado in 2020, accusing Smart of using excessive force in violation of the Eighth Amendment ban on cruel and unusual punishment.

Smart initially moved for dismissal under Federal Rule of Civil Procedure (FRCP) 12(b)(6), claiming qualified immunity (QI). The district denied that motion, finding that Smart was or “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.”

The guard then moved for summary judgment under FRCP 56, raising the affirmative defense that Estrada did not file a grievance under DOC Administrative Regulation (AR) 850-04, which lays out the prison system’s three-step procedure for prisoners to make complaints. Estrada countered that he could not file a grievance because the shooting occurred outside of a DOC facility, and AR 850-04 was silent about that.

The district court thoroughly analyzed the PLRA and concluded that it applied to the instant case. It then analyzed AR 850-04 and concluded that it applied to the shooting at the courthouse because (1) Estrada was a prisoner in the custody of the DOC; (2) AR 850-04 explicitly stated that it covered issues within the prison but was not limited to them; (3) AR 850-04 also explicitly stated that it covered “actions by offenders and employees,” a phrase not included in the paragraph describing covered incidents occurring only within the prison—so lawmakers must have intended it to apply to prisoner cases stemming from incidents outside the prison, too; (4) AR 850-04’s list of exclusions did not include incidents occurring outside the prison, which the district court said clearly implied that such incidents are covered under the procedure; and (5) AR 850-04 clearly stated it applied to offenders within the DOC and to offenders housed outside prison, including those “housed in private facilities” and those “who have been released to parole, community, or ISP supervision.”

Finding therefore that Estrada’s complaint was covered under the regulation, and that he had failed to follow its grievance procedure, the district court said that he failed to exhaust his administrative remedies in violation of the PLRA, and granted summary judgment to Smart. Estrada appealed.

Tenth Circuit Takes Up the Case

On appeal, Estrada argued first that the district court erred in deciding the exhaustion question without a hearing, instead of sending it to a jury. More fundamentally, he argued, the district court erred in applying the PLRA at all, since the shooting occurred at the courthouse, and the PLRA was inapplicable to any location outside prison walls.

Considering his first argument, the Tenth Circuit observed that “[p]risoners have a right to a jury trial on the merits, but that right does not guarantee resolution by a jury of all factual disputes,” citing Small v. Camden Cnty., 728 F.3d 265 (3d Cir. 2013). The Court said that “[t]he 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”—but it decided to “do so now.” Joining the Second, Third, Fifth, Seventh, Ninth and Eleventh Circuits, the Court held that Tenth Circuit judges now “may resolve factual disputes relevant to the exhaustion issue without participation of a jury.” The one exception, inapplicable here, was if those facts were bound up with the merits of the underlying dispute.

As to specifics of the exhaustion issue, the Court said that Estrada offered no evidence-based argument to demonstrate that AR 850-04 was inapplicable to him. So the district court was not required to hold an evidentiary hearing, as laid out in May v. Segovia, 929 F.3d 1223 (10th Cir. 2019). That dispensed with his first argument.

Regarding his second argument, the Tenth Circuit observed that Estrada had failed to challenge the scope of the PLRA in the district court. However, because the district court sua sponte analyzed the PLRA in depth, the issue was neither waived nor forfeited, the Court said, deferring to United States v. Hernandez-Rodriguez, 352 F.3d 1325 (10th Cir. 2003).

The Court then recalled that when enacting the PLRA in 1996, Congress declared that “[w]hat this country needs is fewer and better prisoner suits,” as noted in Jones v. Bock, 549 U.S. 199 (2007). The PLRA “elevated mandatory administrative exhaustion to its current height” in 42 U.S.C. § 1997e(a), the Court said, quoting: “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.”

What Estrada offered to dismiss the law’s applicability was a “geography-based test,” the Court said. But PLRA applicability “is not dependent strictly and solely upon geography but on whether a prisoner is confined in any jail, prison, or other correctional facility,” the Court continued, pointing to United States v. Hutchinson, 573 F.3d 1011 (10th Cir. 2009). Most troubling to any geography-based interpretation, the Court noted, is that it would exclude conditions-of-confinement claims arising when prisoners are transported to court, medical appointments and to other facilities.

The Court allowed that “Congress did not define the terms in section 1997e(a).” But a related PLRA provision amended 18 U.S.C. § 3626(g)(2) to define a “civil action with respect to prison conditions” more broadly to include “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.” That was the same section, which the Court had previously cited in concluding that the PLRA applied to another prisoner’s suit “challenging the amount of compensation he received for work performed outside the prison,” in Dmytryszyn v. Hickox, 172 F.3d 62 (10th Cir. 1999) (unpublished).

Another suit in which the Court also found the law applicable to claims arising from actions occurring outside prison was Forbes v. Garcia, 696 F.Appx. 381 (10th Cir. 2017) (unpublished). In that case, the fact pattern was nearly identical to the instant case, the Court said, involving an alleged “assault at [a] county courthouse” where the plaintiff was in custody. Thus “marrying together” § 3626(g)(2) and § 1997e(a), the Court said that the PLRA applied to Estrada, a decision that “align[ed] with three other Circuits,” citing Smith v. Zachary, 255 F.3d 446 (7th Cir. 2001); Ruggiero v. Cnty. of Orange, 467 F.3d 170 (2d Cir. 2006); and Alexander S. v. Boyd, 113 F.3d 1373, (4th Cir. 1997), abrogated on other grounds by Martin v. Hadix, 527 U.S. 343, (1999).

Given that, the Court said that he was required to exhaust the AR 850-04 remedies if they applied to him and were available to him, citing Ross v. Blake, 578 U.S. 632 (2016). On that point, the Court agreed with the district court’s analysis and affirmed the summary judgment order. Before the Court, Estrada was represented by attorneys with Arnold & Porter Kaye Scholer LLP in Denver, New York City and Washington, D.C. See: Estrada v. Smart, 107 F.4th 1254 (10th Cir. 2024).

Estrada requested and was granted a writ of certiorari on February 11, 2025, from the Supreme Court of the United States, which will hear his appeal and issue a ruling later in the year. His argument—that a prisoner cannot be expected to file a grievance over something the grievance policy is silent about—may convince the Justices to continue his case. Or the high court’s reactionary majority may simply take the opportunity to foreclose a circuit split, bringing those to the altar who haven’t married disparate laws to find a reason to dismiss a prisoner’s suit. See: Estrada v. Smart, U.S., Case No. 24-857.

Estrada’s case is but one of many with an otherwise meritorious claim that was dismissed on procedural grounds due to the PLRA’s administrative exhaustion requirement. While the Jones may have wanted to believe that Congress really passed the law to encourage “fewer and better prisoner suits,” that is only half true; as this case shows, the PLRA results in fewer prisoner suits decided on the merits, while doing next to nothing to ensure better litigation—with no requirement to appoint counsel in drafting or researching suits, or in navigating complex administrative remedies.  

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