                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                  October 4, 2010
                            FOR THE TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                   Clerk of Court



    JOHNNY L. HARDEMAN,

                Plaintiff-Appellant,

    v.                                                   No. 10-7019
                                             (D.C. No. 6:08-CV-00086-RAW-SPS)
    CHARLES SANDERS; MR.                                  (E.D. Okla.)
    CARTER, individually; GREG
    PROVINCE, LINDA MORGAN, and
    CHAD BROWN,

                Defendants-Appellees.



                             ORDER AND JUDGMENT *


Before TYMKOVICH, BALDOCK, and HOLMES, Circuit Judges.


         In this civil rights action, Johnny L. Hardeman claimed he was sexually

assaulted by a prison guard in violation of the Eighth Amendment. He further

claimed that when he reported the alleged assault, prison officials retaliated and



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
disclosed to other inmates that he has human immunodeficiency virus (“HIV”).

The district court granted summary judgment on some claims and later dismissed

the rest for failure to exhaust administrative remedies. We affirm.

                                          I

      Mr. Hardeman is an Oklahoma prisoner who alleges that he was sexually

assaulted by a correctional officer, defendant Charles Sanders, while incarcerated

at the Mack Alford Correctional Center (“MACC”). He reported the alleged

assault to defendant Steven Carter, an internal affairs investigator, on March 29,

2007. During their meeting, Carter asked in a harsh tone if Sanders knew

he–Mr. Hardeman–was HIV positive. Mr. Hardeman said he did not know, so

Carter ordered him to leave. Carter then interviewed other inmates who were

known acquaintances of Mr. Hardeman, asked if they had sexual contact with

him, and disclosed to them that Mr. Hardeman had HIV. That same day,

Mr. Hardeman sent an administrative complaint to MACC’s warden, defendant

Province, indicating that he had reported the sexual assault and felt Carter was

pursuing retaliatory tactics in investigating the allegations. Also, he was moved

to administrative segregation and later was transferred to the Oklahoma State

Penitentiary (“OSP”), where he would continue to be confined in segregation.

      Mr. Hardeman sought an explanation for the changes to his confinement

when he appeared before the OSP administrative segregation board. The board

chairman, defendant Linda Morgan, offered no answer, however, and

                                         -2-
Mr. Hardeman subsequently was placed in long term segregation. He then

continued to challenge his transfer and segregation through the prison grievance

process, alleging these were retaliatory acts for reporting Sanders’ sexual assault.

      Defendant Chad Brown, an OSP case manager, answered one of

Mr. Hardeman’s complaints. He told Mr. Hardeman that he was transferred to

OSP due to sexual misconduct. This response triggered a series of grievances and

correspondences from Mr. Hardeman challenging the disclosure of his HIV status,

his transfer, and his segregation as retaliatory. The responses he received,

however, all indicated that he was transferred for his own safety, to prevent other

inmates from being infected with HIV, and because there was an ongoing internal

affairs investigation into the alleged assault.

      Eventually, the investigation concluded that there was insufficient evidence

to sustain Mr. Hardeman’s allegations of sexual assault. The investigation

confirmed, however, that he had been sexually involved with other inmates after

testing positive for HIV. Consequently, he was found to be in violation of a

prison prohibition on sexual activity among inmates and possibly Okla. Stat. tit.

21 § 1192.1, which outlaws the knowing and intentional transfer of HIV.

      Dissatisfied with the results of his administrative efforts, Mr. Hardeman

filed a complaint in the district court, claiming that he was transferred in

retaliation for reporting the alleged assault. He also claimed that by revealing his

HIV status, defendants violated the Constitution, the Americans with Disabilities

                                          -3-
Act (“ADA”), 42 U.S.C. § 12101 et seq., and Oklahoma law, among other things.

Finally, Mr. Hardeman maintained that the alleged assault violated his Eighth

Amendment rights.

      The district court granted summary judgment to Morgan and Brown on all

claims, and to Sanders on all but the Eighth Amendment claim. The court also

specifically rejected Mr. Hardeman’s allegations under the ADA. In a subsequent

order, the district court dismissed the remaining claims against Province, Carter,

and Sanders for failure to exhaust administrative remedies, see 42 U.S.C.

§ 1997e(a), and denied as moot all pending motions, including a motion to compel

discovery filed by Mr. Hardeman. Mr. Hardeman now appeals pro se. 1

                                         II

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

legal standard as the district court. See Padhiar v. State Farm Mut. Auto. Ins.

Co., 479 F.3d 727, 732 (10th Cir. 2007). We likewise review de novo the district

court’s dismissal for failure to exhaust administrative remedies. Little v. Jones,

607 F.3d 1245, 1249 (10th Cir. 2010).

      Mr. Hardeman first contends the district court erred in finding that he failed

to exhaust his claims against Province, Carter, and Sanders. Prisoners must

exhaust administrative remedies before bringing an action in federal court. See

1
     We liberally construe pro se pleadings. Braxton v. Zavaras, ___ F.3d ___,
2010 WL 2991382, at * 1 (10th Cir. Aug. 2, 2010).


                                         -4-
42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 211 (2007). An inmate

properly exhausts by completing all the steps of the prison’s administrative

grievance process. Little, 607 F.3d at 1249. 2 “An inmate who begins the

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

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

omitted).

      Mr. Hardeman contends he exhausted his remedies to the extent they were

available to him. See id. (inmates need only exhaust “available” remedies). He

explains that he initiated the grievance process at MACC and submitted an RST.

He then pursued his remedies after he was transferred to OSP by sending a

grievance to Warden Province at MACC, but OSP’s warden intercepted the

grievance and returned it unanswered for failing to attach the RST. Although

Mr. Hardeman had ten days to correct the deficiency, he instead attached his

unanswered grievance to a new RST and sent that to Province. Province finally

received it on May 24, 2007, but by then the time for submitting the grievance

had expired. Nevertheless, Province responded to the grievance, indicating that

Mr. Hardeman had been transferred to OSP because the internal affairs

investigation showed that his medical condition, coupled with his activities,


2
      Oklahoma’s grievance process entails an informal complaint, and then three
written steps: a Request to Staff (“RST”), a formal grievance to the facility head,
and finally an appeal to the Administrative Review Authority (“ARA”). See
Thomas v. Parker, 609 F.3d 1114, 1117 (10th Cir. 2010).

                                        -5-
“constituted a clear danger to the security, control, and safety of the facility.”

R. at 129. Province also reported that Sanders had been cleared of wrongdoing.

Mr. Hardeman subsequently attempted to complete the administrative process by

appealing to the ARA, but his appeal was rejected, in part, because his grievance

to Province was untimely. 3 Undeterred, Mr. Hardeman sought to grieve the same

matters out-of-time, but the ARA denied his request. Now on appeal,

Mr. Hardeman argues that the interference of OSP’s warden rendered his

remedies unavailable.

      The problem with all this is that Mr. Hardeman never made this argument

in the district court. Instead, he asserted, among many other things, that the

ARA’s denial of his request to submit the grievance appeal out-of-time was a

final administrative decision that satisfied the exhaustion requirement. See id. at

332. Although he speculated at one point that prison officials were inhibiting his

efforts to exhaust, he indicated that the impediment was the reviewing authority’s

refusal to answer a different grievance that sought restoration of his prior earned

credit level. See id. at 334-36. Inexplicably, he also claimed that he exhausted

by engaging in an internal affairs review and filing (something) with risk

management and the attorney general’s office. See id. at 691, 800. But

Mr. Hardeman advances none of these theories on appeal.

3
       The ARA’s other reason for returning the appeal unanswered was that it
raised more than one issue. We recently ruled that the ARA has no authority to
reject an appeal because it contains multiple issues. See Little, 607 F.3d at 1250.

                                          -6-
      This court “should not be considered a ‘second-shot’ forum, a forum where

secondary, back-up theories may be mounted for the first time on appeal.”

Tele-Commc’ns, Inc. v. Comm’r., 104 F.3d 1229, 1233 (10th Cir. 1997). “[A]n

issue must be presented to, considered and decided by the trial court before it can

be raised on appeal.” Id. (quotations and brackets omitted). We recognize that

Mr. Hardeman is proceeding pro se, but 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). Mr. Hardeman did not previously contend that he was unable to

properly exhaust due to the interference of OSP’s warden, and his failure to raise

that argument in the district court renders it waived on appeal.

      As for Mr. Hardeman’s remaining three arguments, we find them wholly

unpersuasive. He contends Morgan and Brown were not entitled to judgment on

the retaliation claim because there was conflicting evidence of retaliatory intent.

Our review discloses no evidence of retaliation, however. Instead, as the district

court correctly recognized, the evidence indicates that Mr. Hardeman was

transferred due to the ongoing internal affairs investigation and his history of

promiscuity, which potentially exposed other inmates to HIV. He was also

transferred for his own safety. Moreover, Mr. Hardeman violated a prison ban on

sexual activity among inmates and potentially violated state law. Against all this

evidence, Mr. Hardeman offered nothing but bald allegations of retaliation. See

                                         -7-
Frazier v. Dubois, 922 F.2d 560, 562 n.1 (10th Cir. 1990) (“Mere allegations of

constitutional retaliation will not suffice; plaintiff[] must rather allege specific

facts showing retaliation because of the exercise of the prisoner’s constitutional

rights.”). Under these circumstances, the claim is meritless.

      Mr. Hardeman’s next contention is also meritless. He maintains the district

court erred in granting summary judgment on his ADA claim. But he offers no

authority to counter the court’s ruling that unprotected sex in prison by

HIV-positive inmates is not a major life activity under the ADA. See generally

Robertson v. Las Animas County Sheriff’s Dep’t, 500 F.3d 1185, 1193-94

(10th Cir. 2007) (“A disability within the meaning of the ADA is . . . ‘a physical

or mental impairment that substantially limits one or more . . . major life

activities’ of an individual.”) (quoting 42 U.S.C. § 12102(1)(A)); see also id. at

1194 (observing that the term “major life activities” under the ADA “refers to

those activities that are of central importance to daily life and includes such basic

abilities as walking, seeing, and hearing” (quotation omitted)).

      Mr. Hardeman finally contends the district court failed to rule on his

motion to compel discovery. Given the court’s disposition, however, the court

denied as moot all pending motions, including the motion to compel. There was

no error.

      There is, however, one lingering issue pertaining to the nature of the

district court’s dismissal. Our cases hold that under the present circumstances,

                                          -8-
dismissals for failure to exhaust must be without prejudice. See Gallagher v.

Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009) (remanding to allow district court

to clarify that its dismissal of claims for failure to exhaust was without prejudice);

Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1139-40 (10th Cir. 2005)

(same). The district court did not specify that its dismissal of the unexhausted

claims was without prejudice, so we must remand to allow the court to clarify

accordingly.

                                         III

      The judgment of the district court is AFFIRMED, but the case is

REMANDED with instructions to clarify that the unexhausted claims are

dismissed without prejudice.



                                                    Entered for the Court


                                                    Bobby R. Baldock
                                                    Circuit Judge




                                         -9-
