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

                           FOR THE TENTH CIRCUIT                      December 6, 2012

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
ERNIE CALBART, SR.,

             Plaintiff-Appellant,

v.                                                        No. 12-1157
                                              (D.C. No. 1:11-CV-01026-LTB-CBS)
DENVER SHERIFF CAPT. SAUER;                                (D. Colo.)
DENVER SHERIFF SANTANGELO;
DENVER SHERIFF PACHCO;
DENVER SHERIFF ESPINOZA,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before GORSUCH, ANDERSON, and EBEL, Circuit Judges.


      Ernie Calbart, Sr., appeals pro se from the district court’s grant of summary

judgment in favor of defendants on his civil rights claims under 42 U.S.C. § 1983.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.


*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                   I. Background

      Calbart’s claims related to events occurring on February 20 and 21, 2011,

while he was a pre-trial detainee at the Denver Detention Center. In his amended

complaint, he alleged that defendants, all of whom are Denver Deputy Sheriffs,

violated his rights under the Eighth and Fourteenth Amendments by failing to protect

him from an attack by another inmate. Calbart alleged that he was threatened by two

other inmates on February 20. He reported the threat and received a grievance form,

which he submitted, asking to be moved to a cell in a different pod. The next day,

February 21, Calbart met with defendants with regard to the threat and he again asked

to be moved to a different pod. Defendant Santangelo referred him to the officer in

charge of moving inmates (who is not a defendant in this action). Calbart alleged

that defendants Espinoza and Pachco went off duty on February 21, without

informing the deputies who relieved them that the two inmates had threatened

Calbart. He alleged that his cell door was opened at 4:00 p.m. that day so he could

go to an appointment. The two inmates who had threatened him were in the pod, and

one of them attacked him.

      In claim one of his amended complaint, Calbart alleged that defendants

violated his Fourteenth Amendment rights because they were aware that the two

inmates had threatened him. His second claim alleged that defendant Sauer violated

his Eighth Amendment rights because Sauer had the power to move him to a different

pod as soon as possible, but failed to do so after becoming aware of the threats.


                                         -2-
      Defendants moved to dismiss Calbart’s amended complaint pursuant to

Fed. R. Civ. P. 12(b)(6), because he failed to exhaust his administrative remedies as

required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (“PLRA”). They

argued alternatively that they were entitled to qualified immunity. Defendants

attached exhibits to their motion, and they noted that a Rule 12(b)(6) motion could be

treated as a motion for summary judgment under Fed. R. Civ. P. 56 if matters outside

of the pleading were presented to and considered by the court. Calbart did not object

that defendants’ motion referenced materials outside of the amended complaint.

Instead, he attached an affidavit and over thirty pages of exhibits to his response to

the motion.

      A magistrate judge issued a report and recommendation (R&R) on defendants’

motion. He initially determined that the motion to dismiss should be converted into a

motion for summary judgment because the parties had relied on documents not

attached to or incorporated into the amended complaint. After reviewing the

evidence the parties submitted regarding Calbart’s grievances, the magistrate judge

concluded that Calbart failed to exhaust his administrative remedies as outlined in the

Denver Sheriff Department Inmate Handbook (“Inmate Handbook”). He also

determined that Calbart failed to establish a cognizable Eighth Amendment claim

because he did not allege more than a de minimus injury and there was no evidence

that his injury resulted from defendants’ deliberate indifference. The R&R therefore

recommended that defendants be granted summary judgment on Calbart’s claims.


                                          -3-
      Calbart simultaneously filed objections to the R&R and a motion for

permission to file an amended complaint. In his objections, he contended that the

magistrate judge abused his discretion by treating defendant’s motion to dismiss as a

motion for summary judgment without first notifying the parties. As to his

exhaustion of administrative remedies, Calbart argued that defendants had hindered

his access to grievance forms. He also maintained that defendants had filed in the

district court an exhibit purporting to be a copy of one of his grievance forms, but

that the handwriting on that exhibit was not his. And he claimed that he had sent

letters to the Division Chief and Director of Corrections, but defendants had not

produced his letters and he had never received a response to them. Finally, Calbart

argued that the magistrate judge erred in concluding that his Eighth Amendment

claim failed because he alleged only a de minimus injury.

      The district court denied Calbart’s motion for permission of file an amended

complaint. After reviewing the R&R de novo, the district court approved it and

granted summary judgment in favor of defendants. Calbart filed a timely notice of

appeal.

                                    II. Discussion

      Calbart argues on appeal that the district court (1) abused its discretion in

converting defendants’ motion to dismiss into a motion for summary judgment;

(2) abused its discretion in granting defendants summary judgment on their

failure-to-exhaust defense without stating the bases for its decision; (3) erred in


                                          -4-
concluding that he failed to exhaust his administrative remedies; (4) erred in

concluding his Eighth Amendment claim failed because he suffered only a

de minimus injury; and (5) abused its discretion in denying him leave to further

amend his amended complaint.

              A. Conversion of Defendants’ Motion to Dismiss into a
                         Motion for Summary Judgment

      Calbart contends that he did not receive adequate notice before the magistrate

judge treated defendants’ Rule 12(b)(6) motion as a summary judgment motion under

Rule 56. “We review for an abuse of discretion a district court’s decision to consider

evidence beyond the pleadings and convert a motion to dismiss to a motion for

summary judgment.” Marquez v. Cable One, Inc., 463 F.3d 1118, 1120 (10th Cir.

2006) (quotation omitted).

      Before treating a motion to dismiss as a summary judgment motion, a district

court must give notice to the parties “to prevent unfair surprise.” Wheeler v.

Hurdman, 825 F.2d 257, 259 (10th Cir. 1987) (quotation omitted). But we have held

there is no unfair surprise when a party submits material beyond the pleadings in

support of or in opposition to a motion to dismiss because the party’s actions “put[]

[him] on notice that the judge may treat the motion as a Rule 56 motion.” Id. at 260.

Here, because all parties had submitted evidence outside of the amended complaint,

the magistrate judge determined that additional notice was not required before

treating defendants’ motion as a motion for summary judgment. The district court

agreed and therefore granted defendants summary judgment.

                                         -5-
      Calbart argues that this reasoning should not apply to a pro se litigant. He

cites Jaxon v. Circle K Corp., 773 F.2d 1138, 1140 (10th Cir. 1985), in which we

reversed a grant of summary judgment in favor of the defendant. In that case the

district court held that the plaintiff’s unsworn evidence was insufficient to oppose

summary judgment and also denied him a continuance in order to file affidavits. See

id. at 1139, 1140. We noted that the plaintiff’s evidence would have precluded a

grant of summary judgment on his claims if it had been submitted in the proper form,

see id. at 1139, and we cautioned that “[d]istrict courts must take care to insure that

pro se litigants are provided with proper notice regarding the complex procedural

issues involved in summary judgment proceedings,” id. at 1140 (quotation omitted).

      Jaxon is distinguishable from this case. While the plaintiff in Jaxon was

tripped up by a highly technical requirement for the presentation of admissible

evidence, Calbart acknowledges that Rule 12(d) plainly states if “matters outside the

pleadings are presented to and not excluded by the court, the motion must be treated

as one for summary judgment.” We have “repeatedly insisted that pro se parties

follow the same rules of procedure that govern other litigants.” Garrett v. Selby

Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quotation omitted).

Here, defendants not only submitted evidence outside of the amended complaint with

their Rule 12(b)(6) motion, they also alerted Calbart to the possibility that the court

might treat the motion as seeking summary judgment. He responded in kind with his

own evidence in opposition to the motion, which the magistrate judge admitted and


                                          -6-
thoroughly considered in the R&R. Calbart has not shown an abuse of discretion by

the district court in converting defendants’ motion to dismiss into a motion for

summary judgment without additional notice to the parties.1

                  B. Failure to Exhaust Administrative Remedies

      Exhaustion of administrative remedies is mandatory under the PLRA and

“unexhausted claims cannot be brought in court.” Thomas v. Parker, 609 F.3d 1114,

1117 (10th Cir. 2010). “Because the prison’s procedural requirements define the

steps necessary for exhaustion, an inmate may only exhaust by properly following all

of the steps laid out in the prison system’s grievance procedure.” Little v. Jones,

607 F.3d 1245, 1249 (10th Cir. 2010) (citation omitted). “An inmate who begins the

grievance process but does not complete it is barred from pursuing a § 1983 claim

under PLRA for failure to exhaust his administrative remedies. The doctrine of




1
       We decline to consider Calbart’s additional contention that the district court
abused its discretion by not permitting him to commence discovery before
responding to defendants’ converted summary judgment motion. Calbart did not
make that argument in his objections to the magistrate judge’s R&R, and as he is
aware, “the failure to make timely objection waives appellate review of both factual
and legal questions.” Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010)
(ellipsis omitted). Calbart contends that his argument about lack of notice—which he
did make in his objections—can be liberally read to include an argument about a lack
of opportunity for discovery. We note that the R&R advised Calbart that his
objections must be specific in order to preserve an issue for appellate review.
Accordingly, we will not expand our liberal construction of his pro se objections to
include an argument he plainly did not make. Nor does Calbart make any effort to
demonstrate that the interests of justice support an exception to our firm waiver rule.
See id.


                                         -7-
substantial compliance does not apply.” Thomas, 609 F.3d at 1118 (citation,

quotations, and brackets omitted).

      Calbart first contends that the district court abused its discretion in granting

summary judgment in favor of defendants on their affirmative defense of failure to

exhaust administrative remedies. He maintains that the magistrate judge did not

recommend that summary judgment be granted on that basis and that defendants

failed to object to that aspect of the R&R. Calbart asserts that the district court

therefore erred by granting summary judgment on that ground without stating its

reasons for doing so. Calbart’s argument has no merit because the magistrate judge

did find that he failed to exhaust his administrative remedies, albeit with the

qualifying statement that “the facts are not entirely clear as to exhaustion.” R. at 187.

In the next sentence the magistrate judge stated that “the court also concludes” that

Calbart failed to establish a triable fact issue concerning his § 1983 claims, id., thus

confirming that the R&R recommended two independent bases for granting summary

judgment in defendants’ favor. Therefore, by approving the R&R, the district court

adequately stated its reasons for granting summary judgment on defendants’

failure-to-exhaust defense.

      Construing his pro se appellate briefs liberally, see de Silva v. Pitts, 481 F.3d

1279, 1283 n.4 (10th Cir. 2007), Calbart also appears to challenge the district court’s

conclusion that he failed to exhaust his administrative remedies. “We review




                                          -8-
de novo the district court’s finding of failure to exhaust administrative remedies.”

Thomas, 609 F.3d at 1117 (quotation omitted).

      The magistrate judge found that the Inmate Handbook specifies a multi-step

grievance procedure. At Step One, the inmate delivers a signed grievance form

detailing the date and time of the incident, the act or condition giving rise to the

grievance, and the remedy requested. At Step Two the inmate writes a sealed letter

to the Division Chief stating the specific grievance, the previous steps taken, and all

previous answers received. And at Step Three the inmate writes a personal letter to

the Director of Corrections. At each step, the Inmate Handbook states that the

recipient of the grievance form or letter will provide a written response within ten

working days, and the Director’s response at Step Three is considered the final

resolution.

      In opposition to the defendants’ motion, Calbart presented evidence of

numerous grievances he had submitted, but the magistrate judge found that only three

potentially related to his claims in the amended complaint. In grievance number

10 94020, Calbart described the events on February 20, 2011, when two inmates

threatened him. The relief he requested was to be moved to a cell in a different pod.

The grievance form notes that Calbart received a response on February 21 indicating

that no cells were available in the other pod. The magistrate found there was no

evidence that Calbart satisfied Steps Two or Three with respect to this grievance.




                                          -9-
      Calbart submitted grievance number 10 94021 on February 22, 2011. After

referencing grievance number 10 94020, he stated further that a deputy sheriff (who

is not a defendant in this action) opened his cell door, and one of the inmates who

had threatened him walked over and attacked him. Calbart asserted in grievance

number 10 94021 that he was defending himself and following the rules. The relief

he requested was to be moved back to a cell in his former pod and that all charges

against him be dropped. Calbart stated in an affidavit that he did not receive a

response to grievance number 10 94021. He also presented a letter that he wrote to

Chief Diggans on March 14, 2011, appealing this grievance. But the magistrate

judge found that he failed to satisfy Step Three by writing a letter to the Director of

Corrections.

      Finally, Calbart submitted grievance number 10 94330 on February 25, 2011,

which he characterized as an appeal of grievance number 10 94020. But the remedy

he sought in grievance number 10 94330 was to obtain access to a video tape of his

attack by the other inmate. The grievance form notes that a response was provided

the same day, indicating where Calbart could submit his request for the video tape.

Although Calbart’s March 14 letter also referenced grievance number 10 94330, the

magistrate judge construed it as appealing only grievance number 10 94021. Calbart

sent a letter to Director Wilson on April 1, 2011, reiterating his claim that he had

been attacked after putting defendants on notice of the other inmates’ threats. But he

referred only to grievance number 10 94330 and complained about the lack of a


                                         - 10 -
response to his request for a video tape of the attack. After reviewing all of the

evidence submitted by the parties, the magistrate judge concluded that Calbart failed

to exhaust his administrative remedies.

      Calbart contends that the administrative remedies were unavailable to him

because defendants interfered with his ability to access the necessary grievance

forms; therefore, the exhaustion requirement is inapplicable. See Little, 607 F.3d at

1250 (holding “PLRA only requires the exhaustion of ‘available’ administrative

remedies”). But Calbart’s contention is belied by the numerous grievance forms in

the record. Moreover, the magistrate judge found that he failed to satisfy Steps Two

and Three of the grievance process, which do not require the use of a grievance form.

Calbart argues further that he did satisfy those steps. But in support of this assertion

he points generally to his affidavit and the exhibits he submitted in response to

defendants’ motion. He therefore fails to address the magistrate judge’s reasons for

concluding that the letters he sent were insufficient to fully exhaust his administrative

remedies with respect to any of the potentially relevant grievances.

      Finally, Calbart claims that the exhibit defendants submitted in the district

court, purporting to be grievance number 10 94020, is not a true and accurate copy of

that grievance form. He asserts that defendants’ exhibit was handwritten by someone

other than him. In examining defendant’s exhibit, see R. at 64, as compared to

Calbart’s exhibit that he claims is a true copy of his grievance number 10 94020, see

id. at 134, there do appear to be differences in the handwriting and in some of the


                                          - 11 -
words written in the sections filled out by the inmate. But the substance of those

sections in the two documents is identical, and Calbart fails to explain how the

discrepancies he identifies could establish that he satisfied Steps Two and Three of

the grievance process by sending appropriate letters to the Division Chief and the

Director of Corrections.

       We affirm the district court’s grant of summary judgment in favor of

defendants based on Calbart’s failure to exhaust his administrative remedies.

Accordingly, we need not address his contentions regarding the court’s alternative

ground for granting defendants summary judgment.

                      C. Denial of Motion to Amend Complaint

       Calbart argues that the district court abused its discretion in denying his

motion for permission to file a further amended complaint. His proposed amended

complaint would have added factual allegations regarding the nature of his injury, as

well as a claim that defendants “acted with a whimsical and cavalier attitude about

[the other inmates’ threats].” Id. at 233. In denying leave to amend, the district court

stated that “Plaintiff is not entitled to a second bite of the apple so as to dispute the

[R&R] at this late date.” Id. at 245. Calbart contends that the district court should

have granted his motion because his proposed amendments stated a claim for relief

and because he had not been given notice of the conversion of defendants’ motion to

dismiss into a motion for summary judgment. We have already addressed the latter

contention. And because Calbart’s proffered amended complaint would not cure his


                                           - 12 -
failure to exhaust his administrative remedies, he has not demonstrated that the

district court abused its discretion in denying leave to amend. See Ketchum v. Cruz,

961 F.2d 916, 921 (10th Cir. 1992) (finding no abuse of discretion in denial of

motion to amend where amendment would be futile).

                                    III. Conclusion

      The judgment of the district court is AFFIRMED. We GRANT Calbart’s

motion for leave to proceed in forma pauperis, but remind him of his continuing

obligation to make partial payments until the filing fee is paid in full.


                                                   Entered for the Court


                                                   Stephen H. Anderson
                                                   Circuit Judge




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