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

                             FOR THE TENTH CIRCUIT                     February 28, 2017
                         _________________________________
                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
WESLEY THOMPSON,

      Plaintiff - Appellant,

v.                                                          No. 16-4042
                                                   (D.C. No. 2:12-CV-00680-CW)
MEL COULTER,                                                  (D. Utah)

      Defendant - Appellee.

                         _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, HARTZ, and O’BRIEN, Circuit Judges.
                  _________________________________

      Wesley Thompson, a Utah prisoner proceeding pro se, appeals the district court’s

entry of summary judgment in favor of Captain Mel Coulter, the prison classification

review officer and grievance coordinator, based on Mr. Thompson’s failure to exhaust his

administrative remedies. Mr. Thompson alleged that his prison classification was

incorrect and he was consequently sexually assaulted twice by his cellmate. He brought




      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
claims under 42 U.S.C. § 1983 for violation of his constitutional rights. We exercise

jurisdiction under 28 U.S.C. § 1291 and affirm.

   I.      BACKGROUND

        While housed at the Central Utah Correctional Facility, Mr. Thompson’s

classification as a “C2K” inmate mandated that he be confined in maximum security. In

June 2011 his classification was changed to “C3K,” which allowed him to be moved to

less restrictive housing. He was placed in a cell with RR, who he alleges sexually

assaulted him twice on August 5, 2011. After he reported the assaults, he was transferred

to a different prison location.

        Mr. Thompson filed suit, asserting that Captain Coulter’s refusal to correct his

classification violated his Fourteenth Amendment right to due process, and that the

sexual assaults violated his Eighth Amendment right to be free from cruel and unusual

punishment. Captain Coulter raised the affirmative defense of failure to exhaust

administrative remedies by following the prison’s grievance procedure. See Reedy v.

Werholtz, 660 F.3d 1270, 1276 (10th Cir. 2011) (failure to exhaust is an affirmative

defense). And he argued that the classification claim failed as a matter of law because a

prisoner does not have a recognized property or liberty interest in his prison

classification. The district court granted summary judgment to Captain Coulter.




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   II.      STANDARDS OF REVIEW

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

same legal standard as the district court.” Tuckel v. Grover, 660 F.3d 1249, 1251

(10th Cir. 2011) (internal quotation marks omitted). We consider the evidence in the

light most favorable to Mr. Thompson as the nonmoving party. See id. Summary

judgment is appropriate when “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).

         We have liberally construed Mr. Thompson’s pro se filings. See Garrett v. Selby

Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). We do not, however,

“take on the responsibility of serving as the litigant’s attorney in constructing arguments

and searching the record.” Id. Moreover, “pro se parties [must] follow the same rules of

procedure that govern other litigants.” Id. (internal quotation marks omitted).

   III.     CLASSIFICATION CLAIM

         The district court granted summary judgment to Captain Coulter on the

classification claim because Mr. Thompson had not exhausted the prison grievance

process. The court did not address Captain Coulter’s alternative argument that

Mr. Thompson’s due-process classification claim failed as a matter of law because

Mr. Thompson did not have a recognized property or liberty interest in his prison

classification. But “we may affirm on any basis supported by the record, even if it

requires ruling on arguments not reached by the district court or even presented to us on

appeal.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011).



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       The Due Process Clause of the Fourteenth Amendment prohibits the government

from depriving an individual of life, liberty, or property without due process of law.

U.S. Const. amend. XIV. “To determine whether a plaintiff was denied procedural due

process, we engage in a two-step inquiry: (1) Did the individual possess a protected

interest to which due process protection was applicable? (2) Was the individual afforded

an appropriate level of process?” Washington v. Unified Gov’t of Wyandotte Cty.,

__ F.3d __, 2017 WL 474322, at *6 (10th Cir. Feb. 6, 2017) (internal quotation marks

omitted). Mr. Thompson’s claim fails at the first step because “[a]s a matter of law, [he]

has no liberty interest . . . in discretionary classification decisions by prison officials,”

Gee v. Pacheco, 627 F.3d 1178, 1193 (10th Cir. 2010). Therefore, summary judgment

was appropriate on the classification claim, and Mr. Thompson’s other contentions

regarding this claim (which concern exhaustion) need not be addressed. Moreover, even

if his classification was in error, we fail to see how it caused him any injury since his

classification did not require that he be housed with RR or cause RR to assault him.

   IV.     SEXUAL-ASSAULT CLAIM

       Mr. Thompson’s claim that Captain Coulter violated his Eighth Amendment

protection against cruel and unusual punishment was dismissed for failure to exhaust.

The Prison Litigation Reform Act (PLRA) requires a prisoner to exhaust the available

administrative remedies before filing suit alleging that prison conditions violated his

federally protected rights. See 42 U.S.C. § 1997e(a) (“No action shall be brought with

respect to prison conditions under section 1983 of this title, or any other Federal law, by a

prisoner confined in any jail, prison, or other correctional facility until such

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administrative remedies as are available are exhausted.”). “[T]he PLRA’s exhaustion

requirement applies to all inmate suits about prison life, whether they involve general

circumstances or particular episodes, and whether they allege excessive force or some

other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion requires proper

completion of the grievance process. See Jernigan v. Stuchell, 304 F.3d 1030, 1032

(10th Cir. 2002).

       As Mr. Thompson concedes, he did not file a timely grievance on the sexual

assaults. Although he raises several arguments to try to escape the consequences of his

failure to exhaust, they all miss the mark. First, he contends that he was prevented from

filing a grievance on the sexual assaults because immediately after the assaults he was

placed in segregation without his writing materials. In district court he alleged that “he

was housed in 23 hour lockdown,” R. at 440, and on appeal he alleges that he was kept in

segregation for three weeks. True, “an administrative remedy is not ‘available’ under the

PLRA if prison officials prevent, thwart, or hinder a prisoner’s efforts to avail himself of

the administrative remedy.” Tuckel, 660 F.3d at 1252 (brackets and internal quotation

marks omitted). Mr. Thompson has not alleged, however, that he attempted to file a

grievance but was prevented, thwarted, or hindered from doing so by prison personnel.

On the contrary, his opening brief on appeal seems to say that his reason for not filing a

grievance is that he did not know that he needed to do so before suing. He has not shown

that prison grievance procedures were unavailable to him.

       Second, Mr. Thompson argues that he was not required to exhaust this claim

because applying the PLRA violated his right of access to the courts. But this argument

                                              5
was not preserved below. Mr. Thompson has not identified where he raised it in district

court. Our review of the record reveals only one possible suggestion of an access-to-the-

courts claim, but that suggestion does not mention the PLRA, relying only on an

unsupported assertion that the “Utah Department of Corrections has complet[e] contr[o]l

over whether they want to bar an inmate from redress of court by not allowing plaintiff to

file a grievance.” Proposed Amended Complaint Count III, R. at 410. “Absent

extraordinary circumstances, we will not consider arguments raised for the first time on

appeal.” Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1213 n.5 (10th Cir. 2003)

(brackets and internal quotation marks omitted), abrogated on other grounds by Jones v.

Bock, 549 U.S. 199 (2007). Moreover, we decline to consider whether there was plain

error because Mr. Thompson has not argued the point. See Richison, 634 F.3d at 1131.

For the same reasons, we do not consider Mr. Thompson’s claim that he was entitled to

equitable tolling based on the trauma he suffered from the sexual assaults.

       Third, Mr. Thompson asserts that Captain Coulter waived the affirmative defense

of failure to exhaust by first arguing that Mr. Thompson did not file a grievance at all and

later claiming that the grievance was untimely. We disagree. Our review of the record

does not reveal any inconsistencies in Captain Coulter’s argument and certainly no

failures that could be considered waiver of the defense.

       Fourth, Mr. Thompson argues that the Prison Rape Elimination Act (PREA),

42 U.S.C. §§ 15601-15609, overrules the prison’s grievance requirement. One of the

purposes of the PREA is to protect inmates by “more effectively prevent[ing] prison

rape,” id. § 15605(b)(1)(A), and it authorizes federal grant money to states that adopt it,

                                              6
see id. § 15607(e)(2)(A) (requiring states to certify compliance with the PREA in order to

receive federal funds). One regulation under the Act requires that covered agencies “not

impose a time limit on when an inmate may submit a grievance regarding an allegation of

sexual abuse.” 28 C.F.R. § 115.52(b)(1). But Utah has not adopted the PREA, so

Mr. Thompson cannot rely on it. To the extent that he argues that the State of Utah

should have adopted the PREA, he has provided no authority mandating adoption by

states.

          And fifth, Mr. Thompson contends that the district court erred in dismissing his

claim with prejudice. We agree that “a dismissal based on lack of exhaustion should

ordinarily be without prejudice.” Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1139

(10th Cir. 2005). A without-prejudice dismissal would permit the prisoner to cure the

defect if “the time permitted for pursuing administrative remedies has not expired.” Id.

(internal quotation marks omitted). But it is undisputed that the time for filing a

grievance on Mr. Thompson’s claim has expired. Allowing him another attempt to show

exhaustion would be futile.

   V.        ADDITIONAL ALLEGED ERRORS

          Mr. Thompson argues that the district court erred in failing to rule on the

following matters before granting summary judgment to Captain Coulter: (1) his motion

to file an out-of-time grievance, (2) his motion for the court to inspect his grievances filed

in March 2014, and (3) his motion to amend his complaint. By entering final judgment,

however, the court implicitly denied the pending motions. See Hill v. SmithKline



                                                7
Beecham Corp., 393 F.3d 1111, 1116 (10th Cir. 2004) (district court’s failure to address

arguments “may be properly construed as an implicit denial of those arguments”).

          Mr. Thompson next argues that the district court should have granted his request

for appointment of counsel. But Mr. Thompson had no constitutional right to

representation in his § 1983 lawsuit. See Johnson v. Johnson, 466 F.3d 1213, 1217

(10th Cir. 2006). We review “a district court’s refusal to appoint counsel for an indigent

prisoner in a civil case for abuse of discretion.” Steffey v. Orman, 461 F.3d 1218, 1223

(10th Cir. 2006) (internal quotation marks omitted). The district court did not abuse its

discretion because Mr. Thompson has not demonstrated that denial of counsel “result[ed]

in fundamental unfairness.” Id. (internal quotation marks omitted).

          Mr. Thompson also maintains that his procedural-due-process rights were violated

because the district court did not instruct him on how to proceed, order the prison to hear

his grievances on the merits, or do other unspecified things to help him. But as we said

above, the court should not act as an advocate for a pro se litigant. See Garrett, 425 F.3d

at 840.

   VI.       CONCLUSION

          We DENY Mr. Thompson’s “Request to Submit for Reconsider,” which seeks an

order from this court requiring the prison to allow him to file a grievance, but GRANT

Mr. Thompson’s request for leave to proceed on appeal in forma pauperis. He is

reminded that he is obligated to continue making partial payments until the entire filing

fee has been paid. We also GRANT Captain Coulter’s request to have part of the record

on appeal remain under seal.

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The district court’s judgment is AFFIRMED.


                                   Entered for the Court


                                   Harris L Hartz
                                   Circuit Judge




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