ORDER AND JUDGMENT *
Congress requires some claimants to exhaust available administrative remedies before suing in federal court. These claimants include inmates suing over prison conditions. Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). Despite this requirement, four inmates—Mr. Cecil Mason, Mr. Terry Phillips, Mr. Spencer Brewer, and Mr. Leroy Baker—sued over prison conditions without exhausting their own available administrative remedies, so the district court granted summary judgment to the defendants.
1
The four inmates appeal, and we affirm.
The four inmates are Muslim and were about to conduct a prayer service in the prisons dayroom. But before the prayer service began, a correctional officer discharged pepper spray into the dayroom. (The officer later claimed that the discharge had been accidental; the inmates attributed the discharge to animosity against Muslims.) The pepper spray lingered in the air and required the inmates to cancel the prayer service.
A fifth inmate (Mr. Donell Blount) was in the group and exhausted his available administrative remedies by filing grievances through the prisons grievance system. But he dismissed his suit, and the four other inmates never filed their own grievances.
Though they didnt file grievances, the four inmates argue that they exhausted available administrative remedies through Mr. Blount, invoking the doctrine of “vicarious exhaustion.” In considering this argument, we conduct de novo review. Thomas v. Parker, 609 F.3d 1114, 1117 (10th Cir. 2010).
Courts have recognized vicarious exhaustion in class actions, concluding that class members can vicariously exhaust remedies through a class representative. E.g., Chandler v. Crosby, 379 F.3d 1278, 1287 (11th Cir. 2004). In addition, some courts have allowed victims of employment discrimination to forego exhaustion and join a suit started by similarly situated individuals who have exhausted their own administrative remedies. E.g., Bettcher v. Brown Schools, Inc., 262 F.3d 492, 494–95 (5th Cir. 2001). The parties dispute the applicability of these doctrines to prison litigation.
Our Court has concluded that vicarious exhaustion is available only when theres a class action. McGoldrick v. Werholtz, 185 Fed. Appx 741, 743–44 (10th Cir. 2006) (unpublished). Though that conclusion was not precedential, it is persuasive for inmate suits: When an inmates suit is not brought as a class action, the Prison Litigation Requirement Act mandates compliance with the applicable grievance policy. See Thomas, 609 F.3d at 1118 (requiring compliance with applicable regulations); see also Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (stating that substantial compliance does not suffice). So if the applicable grievance policy prohibits inmates from filing grievances on behalf of others, the Act would not permit inmates to exhaust their administrative remedies by piggybacking onto another inmates grievances.
The grievance policy here generally prohibits inmates from filing grievances on behalf of other inmates. Appellants Amended Appx vol. 1, at 97, 100. The only exception involves grievances for sexual assault, id. at 98, but the claims here involve the discharge of pepper spray, not sexual assault. So the four inmates had to file their own grievances (just as Mr. Blount did). Because the four inmates did not file their own grievances, we affirm the award of summary judgment to the defendants.
FOOTNOTES
1
. With the grant of summary judgment, the court dismissed the suits without prejudice.
Robert E. Bacharach, Circuit Judge