                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                     October 27, 2009
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                        Clerk of Court
                                TENTH CIRCUIT


 BRETT HESTERLEE,
               Plaintiff–Appellant,                      No. 09-6054
          v.                                     (D.C. No. 07-CV-00697-W)
 CORNELL COMPANIES INC., a/k/a                           (W.D. Okla.)
 Great Plains Correctional Facility;
 SAM CALBONE, Warden, in his
 official and individual capacities;
 TRAVIS SMITH, Acting Warden, in
 his official and individual capacities;
 LENT, Case Manger, in her official
 and individual capacities;
 STEVENSON, Captain, in his official
 and individual capacities; PERRY,
 Lieutenant, in his official and
 individual capacities; EXENIA,
 Corporal, in his official and individual
 capacities; BRIAN HALL, Officer, in
 his official and individual capacities,
               Defendants–Appellees.


                           ORDER AND JUDGMENT *


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined



      *
        This order and judgment is not binding precedent, except under the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.
unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2). The case is therefore ordered

submitted without oral argument.

      This is a state prisoner civil rights appeal in which Plaintiff, a former state

prisoner, is represented by retained counsel. In his § 1983 complaint, Plaintiff

alleged that he was beaten by several officers on January 4, 2007, and that

officials at the prison had failed to properly train, supervise, and discipline their

employees to prevent this type of unconstitutional behavior. The district court

granted Defendants’ motion for summary judgment based on Plaintiff’s failure to

properly exhaust his administrative remedies. The court also held that several

Defendants were entitled to summary judgment on the additional ground that

Plaintiff had not alleged with particularity that these Defendants were personally

involved in the alleged assault.

      We review the district court’s grant of summary judgment de novo,

applying the same standards used by the district court. Byers v. City of

Albuquerque, 150 F.3d 1271, 1274 (10th Cir. 1998). Summary judgment is

appropriate “if the pleadings, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine issue as to any material fact and that

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

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

prisoner must exhaust available administrative remedies before bringing a federal

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action regarding prison conditions. To properly exhaust administrative remedies

as required by this statute, “prisoners must ‘complete the administrative review

process in accordance with the applicable procedural rules.’” Jones v. Bock, 549

U.S. 199, 218 (2007) (quoting Woodford v. Ngo, 548 U.S. 81, 88 (2006)); see also

Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (“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.”)

      Where a defendant is seeking summary judgment on the basis of an

affirmative defense, the defendant has the initial burden of demonstrating that

there is no disputed material fact regarding this defense and that the defense

entitles him to judgment as a matter of law. See Hutchinson v. Pfeil, 105 F.3d

562, 564 (10th Cir. 1997). When the defendant meets this initial burden, “the

plaintiff must then demonstrate with specificity the existence of a disputed

material fact.” Id. (emphasis added). “If the plaintiff fails to make such a

showing, the affirmative defense bars his claim, and the defendant is then entitled

to summary judgment as a matter of law.” Id. “[C]onclusory and self-serving

affidavits are not sufficient” to demonstrate the existence of a disputed material

fact and thus defeat a motion for summary judgment. Hall v. Bellmon, 935 F.2d

1106, 1111 (10th Cir. 1991).

      Here, the evidence submitted by Defendants included (1) an affidavit from

a prison official who stated that he had reviewed Plaintiff’s records and

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determined that Plaintiff did not file any grievances alleging that he was assaulted

by officers on January 4, 2007, (2) an affidavit from another officer stating that

he had reviewed Plaintiff’s misconduct records and determined that Plaintiff

attempted three times to appeal the misconduct write-up he received for the

January 4 incident, and (3) records of Plaintiff’s three attempts to file an appeal

for the misconduct report which showed that each attempted appeal was rejected

for procedural failings. The only evidence submitted by Plaintiff as to exhaustion

was his own affidavit, in which he asserted that he had denied the charge in the

misconduct report that he kicked an officer, “followed the grievance procedures

available,” “protest[ed] the issues currently before this Court” and “grieved this

matter through all levels of the appeal process offered.” (Aplt. App. at 81.)

      We agree with the district court that the affidavits and documents submitted

by Defendants were sufficient to meet their initial burden on summary judgment.

We also agree with the district court that the conclusory statements in Plaintiff’s

affidavit lacked the factual specificity required to create a genuine issue of

material fact as to exhaustion. Therefore, for substantially the reasons stated by

the district court, we AFFIRM the dismissal of the complaint.

                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge


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