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

                             FOR THE TENTH CIRCUIT                          July 24, 2020
                         _________________________________
                                                                       Christopher M. Wolpert
                                                                           Clerk of Court
 VICTOR CORNELL MILLER,

       Plaintiff - Appellant,

 v.                                                         No. 19-7044
                                                (D.C. No. 6:18-CV-00135-JHP-SPS)
 KENNETH GOODYEAR, Case Manager,                            (E.D. Okla.)
 in his individual and official capacity;
 JESSICA SMITH, Warden’s Assistant, in
 her individual and official capacity;
 KEVIN DUCKWORTH, Former Warden
 of the Oklahoma State Penitentiary, in his
 individual and official capacity; MARK
 KNUTSON, Director’s Designee,
 Oklahoma Department of Corrections, in
 his individual and official capacity; JOE
 ALLBAUGH, Director of the Oklahoma
 Department of Corrections, in his
 individual and official capacity,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, MATHESON, and EID, Circuit Judges.
                  _________________________________



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      Victor Cornell Miller filed this pro se prisoner civil rights action in state court

against officials of the Oklahoma State Penitentiary (OSP) and Oklahoma

Department of Corrections (ODOC). His complaint alleged the defendants violated

his constitutional rights by unlawfully withholding his earned prison wages, by

denying him access to the courts, by denying his right to free speech and to petition

the government for redress of grievances, and by retaliating against him. The

defendants removed the case to federal district court, which granted summary

judgment in their favor. Mr. Miller appeals. We have jurisdiction, see 28 U.S.C.

§ 1291, and we affirm.

                                   BACKGROUND

      “Because we are reviewing a grant of summary judgment, we recite the facts

in the light most favorable to [Mr. Miller] and we resolve all factual disputes and

reasonable inferences in [his] favor.” Gutierrez v. Cobos, 841 F.3d 895, 898 n.1

(10th Cir. 2016) (brackets and internal quotation marks omitted).

      Mr. Miller is a prisoner in ODOC custody serving two life sentences without

parole. The incidents described in his complaint occurred during his incarceration at

the OSP.1

      An ODOC regulation applicable to OSP inmates known as the “Systems of

Incarceration” (OP-060107) establishes criteria for assigning class levels to inmates.

See R. at 48-60. Under this regulation, each inmate classification level is associated


      1
          On April 21, 2017, Mr. Miller was transferred to the Lawton Correctional
Facility, where he now resides.
                                           2
with corresponding privileges. Among these privileges, inmates classified at levels 2

through 4 are eligible to receive inmate pay (known as “gang pay”). At level 2,

inmates receive $7.23 per month; at level 3, $10.84 per month; and at level 4, $14.45

per month.

      To remain at a level or advance to a higher one an inmate must meet

prescribed criteria including favorable evaluations in a “work, education, or program

assignment.” Id. at 49-50. Because inmate jobs or program assignments are not

always available, the regulation includes an exception to the work-or-program

requirement. That exception provides that “[i]nmates who are not employed due to

the lack of facility job availability or not in assessed programs due to unavailability

may promote in levels, to include receiving the appropriate pay, if all other level

criteria is [sic] met.” Id. at 51 (emphasis added).2

      When Mr. Miller arrived at the OSP on December 15, 2008, he was assigned

to inmate class level 2. Effective June 1, 2009, he was promoted to class level 3, and

effective February 1, 2016, he was promoted to class level 4. He received these

promotions even though he did not perform a qualifying job function while at OSP.

He did not receive gang pay during these periods.



      2
         In addition to this regulation, Mr. Miller cites several state statutes in
support of his claim: Okla. Stat. tit. 57, § 138(B) (directing ODOC to develop
policies concerning inmate employment, including “incentives for inmates to accept
work assignments and jobs”); id. § 510(A)(8) (authorizing ODOC director to
establish prison industries and to pay inmate wages); and id. § 549(A) (empowering
State Board of Corrections to negotiate and apportion wages to inmates in prison
industries).
                                            3
          On February 9, 2016, Mr. Miller made a request to staff concerning his

entitlement to gang pay, seeking “immediate commencement of my pay grade at class

level 3 including all back pay and accrued interest.” Id. at 103. An OSP staff

member responded that “you must have a job in order to be paid” and referred to an

OSP “[e]xception[].” Id. As the defendants explain, this was a purported exception

to the work-or-program exception noted above. The “exception to the exception”

allegedly required that OSP inmates must “be employed to receive gang pay.” Aplee

Br. at 6.3

          On February 19, 2016, Mr. Miller filed a grievance concerning the gang pay

issue. His grievance was rejected as untimely, and he appealed to the Administrative

Review Authority (ARA). An ARA manager rejected each of the OSP’s reasons for

denying the grievance. The manager’s June 16, 2016, memorandum to the Warden

stated:

          Upon further investigation by this office, it has been determined that the
          response to the offender’s request to staff stating that the offender must
          have a job in order to be paid and that OSP operates under an exception to
          [OP-060107] is incorrect. Also, ruling the offender’s grievance out of time
          from the date of incident is incorrect.
R. at 95.




          3
        The defendants apparently were unable to produce this policy in support of
their motion for summary judgment. Compare R. at 35 (acknowledging that “after
thorough review, the exception could not be located”), with id. at 176 (arguing,
without citation to the record, that OSP operated under this exception).

                                               4
       The memorandum instructed the Warden to pay Mr. Miller “in accordance

with OP-060107 and his assigned level effective 2/01/16 to the present.” Id. The

OSP awarded Mr. Miller partial relief in the form of gang pay for the months of

February, March, April and May 2016, reasoning these were the only months that had

been timely covered by his grievance. It also changed its policy on gang pay,

providing future gang pay to all inmates at OSP, including Mr. Miller, so long as they

met all other relevant criteria.

       Mr. Miller then grieved the failure to award him the full amount of back pay

from the date of his arrival at OSP. The ARA rejected his grievance, reasoning that

an award of partial relief could not be appealed.

       Mr. Miller also filed a separate grievance charging that defendant Kenneth

Goodyear had retaliated against him for filing his grievances by allegedly refusing to

prepare and submit his transfer papers or to approve and issue his clothing requests.

He alleges this grievance went unanswered.

                                    DISCUSSION

       We review the grant of summary judgment de novo, applying the same legal

standard as the district court. May v. Segovia, 929 F.3d 1223, 1234 (10th Cir. 2019).

A grant of summary judgment is appropriate “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). A party’s positions concerning material facts

are established by citation to “particular parts of materials in the record.” May,

929 F.3d at 1234 (internal quotation marks omitted); see also Fed. R. Civ. P.

                                           5
56(c)(1)(A). Here, those materials included a report prepared in accordance with

Martinez v. Aaron, 570 F.2d 317, 319-20 (10th Cir. 1978) (en banc) (per curiam),

which is “treated like an affidavit,” Green v. Branson, 108 F.3d 1296, 1302 (10th Cir.

1997) (internal quotation marks omitted).

      “We also review de novo the [district court’s] finding that [Mr. Miller] failed

to exhaust his administrative remedies.” May, 929 F.3d at 1234 (internal quotation

marks omitted). We liberally construe his pro se filings but do not serve as his

advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

      1. Procedural Due Process Claim

      Mr. Miller’s complaint asserted the defendants deprived him of a property

interest in his prison wages without due process. The district court granted the

defendants summary judgment on this claim for two reasons. First, it concluded Mr.

Miller had no protected property interest in prison wages. Second, it concluded he

had an adequate post-deprivation remedy. We affirm based on the second reason.

      “To establish a procedural-due-process claim, a plaintiff needs to demonstrate

not only the possession of a protected property interest but also a denial of an

appropriate level of process.” Reedy v. Werholtz, 660 F.3d 1270, 1275 (10th Cir.

2011).4 An appellant’s failure to challenge the district court’s finding that the

process was adequate waives that issue on appeal. See id.


      4
         Although Mr. Miller’s complaint included passing references to substantive
due process, see, e.g., Complaint at 11, we agree with the district court that his claim
sought recovery for an alleged violation of procedural due process. A substantive
due process claim would have required a very different presentation, including a
                                            6
      The district court stated:

      [U]nder the DOC Offender Grievance Process, . . . an inmate first must
      attempt to resolve his complaint informally by communicating with staff
      within three days of the incident. If that is unsuccessful, he may submit a
      Request to Staff . . . within seven calendar days of the incident. Plaintiff’s
      delay in commencing his administrative remedies restricted the time period
      for which back wages could be considered. Because post-deprivation
      remedies were available, Plaintiff did not suffer a deprivation of his
      procedural due process rights.
R. at 192 (citations omitted) (emphasis added).

      Although Mr. Miller argues the partial relief he received through the grievance

process was inadequate, he does not challenge the district court’s findings that

(1) due process required only an adequate post-deprivation remedy and (2) the

grievance process provided him with a constitutionally adequate remedy.5 He has

therefore waived his challenge to an independent and sufficient ground for granting

summary judgment on his procedural due process claim. We affirm on that basis.




showing that the denial of prison wages under the OSP’s policy lacked a rational
relation to a legitimate penological interest. See Reedy, 660 F.3d at 1275.
      5
          The district court attributed Mr. Miller’s failure to obtain full relief to his
failure to pursue the grievance process for over seven years after he arrived at OSP.
Our precedent supports this analysis. Cf. Myers v. Koopman, 738 F.3d 1190,
1193-94 (10th Cir. 2013) (rejecting argument that a post-deprivation state remedy
was “inadequate because it is now time-barred,” reasoning that “[t]he Fourteenth
Amendment guarantees the provision of an adequate remedy, but that remedy need
not run in perpetuity. [The plaintiff] had an adequate remedy. He let it wither. Due
process has been duly satisfied”).

                                            7
2. Declaratory and Injunctive Relief

      The district court denied Mr. Miller’s requests for declaratory and injunctive

relief, concluding he “failed to show how a declaratory judgment would settle any

controversy or clarify any legal issues” and failed to show his entitlement to

injunctive relief by demonstrating “a good chance of [his] being injured in the

future.” R. at 193. We agree. See, e.g., Green, 108 F.3d at 1300 (“[A] plaintiff

cannot maintain a declaratory or injunctive action unless he or she can demonstrate a

good chance of being likewise injured by the defendant in the future.” (brackets and

internal quotation marks omitted)).

      Mr. Miller also argues that the violation of his civil rights should be

considered “ongoing,” and hence susceptible to “prospective” relief, so long as the

defendants have not yet provided him with back pay. But this is just a damage claim

in disguise. As we have already explained, Mr. Miller failed to establish a viable

procedural-due-process claim that would support a monetary award against the

defendants, whether couched in prospective or retrospective terms.6

      3. Exhaustion of Remedies

      The district court concluded Mr. Miller failed to exhaust his administrative

remedies concerning his retaliation, access-to-courts, free speech, and

redress-of-grievance claims. It noted that when his grievance concerning retaliation




      6
       As a result of his grievance the prison began paying him gang pay every
month going forward.
                                           8
went unanswered, the grievance policy required him to send a grievance to the ARA

complaining about the lack of response, which he failed to do.

      An inmate is required to exhaust available administrative remedies before

filing suit. See 42 U.S.C. § 1997e(a). Mr. Miller argues that because the prison

authorities approved his transfer to a lower-security facility before the grievance

procedure was complete, he received all the relief the grievance procedure could

provide. He contends that he should therefore be excused from further administrative

exhaustion because he had no “available” remedy left to pursue. See Ross v. Blake,

136 S. Ct. 1850, 1858-60 (2016) (discussing requirement in Prison Litigation Reform

Act that inmate exhaust “available” administrative remedies).

      This argument lacks merit. Mr. Miller fails to show that the transfer provided

him with all relief “available” through the grievance process. His grievance sought

an investigation of Mr. Goodyear and appropriate corrective measures, not simply

approval of his transfer. And to the extent Mr. Miller is arguing that the courts can

provide him with additional relief that was “unavailable” through the grievance

process—such as the $500,000 in damages his complaint sought for the alleged

retaliation—the availability of such additional judicial relief does not excuse an

inmate’s failure to exhaust administrative remedies. See, e.g., Booth v. Churner,

532 U.S. 731, 741 (2001). We therefore affirm the grant of summary judgment on

his unexhausted claims.




                                           9
      4. Government Tort Act Claim

      Mr. Miller’s complaint also asserted that the alleged deprivation of gang pay

violated the Oklahoma Governmental Claims Act (GTCA), Okla. Stat. tit. 51,

§§ 151-172. The district court concluded the claim failed because Mr. Miller had

failed to present a proper notice of claim before filing suit, as the GTCA requires.

See id. § 156(A). Mr. Miller asserts he filed a notice of claim with the Office of the

ODOC General Counsel. But the statute requires that the notice be filed with the

“Office of the Risk Management Administrator of the Office of Management and

Enterprise Services,” who is then charged with notifying “the Attorney General and

the agency concerned.” Id. § 156(C).

      Mr. Miller does not argue that his misdirected notice of claim substantially

complied with the statute. Instead, he blames the misdirected notice on a prison

official who allegedly provided him with incorrect information. See Aplt. Opening

Br. at 11. Mr. Miller requested from this official the address of the “Oklahoma

Department of Corrections Office of Risk Management” and the “Risk Management

Officer for the Oklahoma Department of Corrections.” R. at 164, 168. In response to

each request, the official provided pages from a state directory that included

addresses and other contact information for ODOC officials. These pages did not

include information for an “ODOC Risk Management Officer.” Thus, deprived of

this necessary information, Mr. Miller asserts he filed his notice with the Office of

the ODOC General Counsel instead.



                                          10
      Notably, the GTCA does not require that notice be sent to the “ODOC Office

of Risk Management” or the “ODOC Risk Management Officer.” Instead, it requires

that the notice be filed with the Risk Management Administrator of the Office of

Management and Enterprise Services. That state official serves risk management

functions for all Oklahoma state entities, including the Department of Corrections.

See https://omes.ok.gov/services/risk-management (visited July 15, 2020).

      Mr. Miller asserts that “prison officials cannot fail to provide the correct

information for completing [the GTCA’s] exhaustion requirement and then claim

failure to exhaust as a defense.” Aplt. Opening Br. at 11. Mr. Miller’s requests did

not inform the prison officials that he sought information to comply with the

exhaustion requirement. Although a prison official familiar with the organizational

structure of Oklahoma state government might have deduced that he needed an

address for the Oklahoma Risk Management Administrator of the Office of

Management and Enterprise Services, the evidence does not suggest prison officials

intentionally misled Mr. Miller when they responded to his requests. Cf. Ross,

136 S. Ct. at 1860 (administrative exhaustion process should be considered

“unavailable” when prison officials thwart inmates through “misrepresentation”). He

requested information about what he identified as an ODOC office or official, and

they twice provided him with directory pages containing information pertaining to

ODOC officials. In addition, after his first request came back with the “wrong”

information, Mr. Miller could have altered his second request to match the precise

statutory language, but he failed to do so. Under these circumstances, he shows no

                                          11
good reason to excuse his lack of compliance with the GTCA’s mandatory notice

requirement.

      5. Class Certification and Appointment of Class Counsel

      The district court denied Mr. Miller’s motion for class certification and

appointment of counsel, reasoning that his underlying claims lacked merit. He

presents a conclusory challenge to that ruling, see Aplt. Opening Br. at 10-11, but

fails to show the district court erred. We therefore affirm the denial of those

motions.

                                   CONCLUSION

      The district court’s judgment is affirmed.7 We grant Mr. Miller’s motion for

leave to amend his opening brief.8 The district court previously granted Mr. Miller

leave to proceed on appeal in forma pauperis. We remind him of his obligation to

continue making partial payments until the entire fee has been paid.


                                            Entered for the Court


                                            Allison H. Eid
                                            Circuit Judge




      7
        We reject Mr. Miller’s additional assertion that genuine factual issues exist
concerning his claims. The disputed facts he identifies do not preclude summary
judgment, even when viewed as required in the light most favorable to him.
      8
         The amended brief appears to be identical to his original appeal brief, except
for the addition of an argument that the district court improperly granted qualified
immunity to the defendants. Because our disposition does not depend on qualified
immunity, it is unnecessary to further discuss that issue.
                                           12
