                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                         May 18, 2012

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
KEENAN D. WHITE, SR.,

             Plaintiff-Appellant,

v.                                                         No. 11-7030
                                               (D.C. No. 6:07-CV-00085-FHS-SPS)
MIKE MULLINS; MARTY SIRMONS,                               (E.D. Okla.)
Warden; KAMERON HARVONEK,
Deputy Warden; RICK CAYWOOD,
Chief; JOHN KLINK; CURTIS HOOD,
Major; DARYL WILSON,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before TYMKOVICH, BALDOCK, and GORSUCH, Circuit Judges.


      Keenan White, an Oklahoma state prisoner, brought this lawsuit against

various prison officials under 42 U.S.C. §1983. In it, he alleged that prison officials

facilitated an attack on him by another prisoner and unreasonably delayed medical

treatment. At summary judgment, the defendants argued (among other things) that

*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Mr. White had failed to exhaust his administrative remedies. The motion was

supported by a prison manager’s affidavit stating that, while the prison had records of

multiple complaints by Mr. White, those same records showed he had failed to

exhaust any of them through grievance processes available to him. In response,

Mr. White submitted his own affidavit claiming that “copies of [his] grievance

documents were removed from [his] possession.” Finding Mr. White’s affidavit

conclusory, the district court granted summary judgment to the defendants, reasoning

that there was no genuine issue of fact about Mr. White’s failure to exhaust his

administrative remedies. See 42 U.S.C. § 1997e(a). It is that ruling Mr. White,

represented by counsel, now appeals.

      We agree with the district court that Mr. White’s affidavit is conclusory and

fails to raise a genuine issue of fact. Mr. White’s affidavit says that copies of certain

unspecified filings were taken from him. But it doesn’t say that prison guards took

away materials he was intending to file, thus precluding him from exhausting his

claims. Neither does it provide any facts suggesting that prison officials engaged in a

conspiracy to destroy documents they received from him that might show he fully

exhausted the grievance process. If anything, the only evidence in the record is to the

contrary: the prison manager’s affidavit details multiple grievance documents from

Mr. White and explains that he failed to pursue any of them to completion. Beyond

its conclusory assertions, then, the facts in Mr. White’s affidavit suggest at most only

that copies of what he did file were taken from him, not that what he filed was


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sufficient to exhaust his administrative remedies. The district court was correct that a

reasonable factfinder could not find otherwise and that Mr. White’s assertion of

exhaustion is just that, an assertion unsupported by facts or even any allegations of

fact. See Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991) (“conclusory and

self-serving affidavits are not sufficient” to overcome summary judgment).

       Because we agree with the district court’s assessment on this score, it is

unnecessary for us to address the defendants’ alternative argument that genuine

issues of fact regarding exhaustion of administrative remedies may be resolved by the

court rather than being left to the trier of fact.



                                                     Entered for the Court



                                                     Neil M. Gorsuch
                                                     Circuit Judge




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