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

                               FOR THE TENTH CIRCUIT                          June 12, 2020
                           _________________________________
                                                                          Christopher M. Wolpert
                                                                              Clerk of Court
    FREDERICK RIDEOUT GRAY, JR.,

         Plaintiff - Appellant,

    v.                                                          No. 19-7060
                                                   (D.C. No. 6:16-CV-00145-RAW-SPS)
    PATRICIA SORRELS; DAVID                                     (E.D. Okla.)
    MARLAR; NANCY COPPEL; AMBER
    ROBINSON; ALICIA SCULL; BUSTER
    HARRIS; BUDDY HONAKER; JAMES
    HOWARD; SUSAN SHIELDS;
    PATRICIA STEM; WILLIAM TAYLOR,

         Defendants - Appellees.
                        _________________________________

                               ORDER AND JUDGMENT*
                           _________________________________

Before HOLMES, MATHESON, and EID, Circuit Judges.
                  _______________________________

         Appellant Frederick Gray is an inmate held by the Oklahoma Department of

Corrections (“ODOC”). He filed this pro se 42 U.S.C. § 1983 action against ODOC

officials who, he alleges, violated his constitutional rights. The district court dismissed

Gray’s claims, because he failed to exhaust the ODOC’s grievance process as required by


*
  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 This order and judgment is not binding precedent, except under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.
the Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(a). Exercising

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

                                             I.

       While incarcerated at the Oklahoma State Penitentiary (“OSP”) in McAlester,

Oklahoma, Gray suffered from severe pain and swelling in his knees. And after a

cellmate attacked him, he also experienced discomfort in his neck. Focusing on a failure

to provide him timely medical care, Gray sought relief for several alleged constitutional

violations during his time at the OSP. The district court dismissed the amended

complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6).

       Gray appealed and we affirmed in part, and reversed and remanded in part. See

Gray v. Sorrels, 744 F. App’x 563, 566 (10th Cir. 2018) (unpublished). On remand, three

claims remained: a claim against OSP Nurse Nancy Coppel alleging she denied Gray

medical treatment; a claim against OSP Resident Physician Dr. David Marlar concerning

Gray’s neck injury; and an equal protection claim against Coppel and OSP Nurses Amber

Robinson and Alicia Scull. Id. at 574. After filing a Martinez report at the direction of

the district court, the remaining defendants moved for summary judgment, alleging,

among other things, that Gray failed to exhaust his administrative remedies for the

remanded claims. Finding there were no genuine issues of material fact concerning

Gray’s failure to properly exhaust his administrative remedies, the district court granted

the motion for summary judgment. Gray now appeals.




                                             2
                                             II.

       “We review de novo the district court's finding of failure to exhaust

administrative remedies.” Little v. Jones, 607 F.3d 1245, 1249 (10th Cir. 2010) (internal

quotation marks and citation omitted). Because Gray is pro se, we afford his materials a

liberal construction but do not act as his advocate. See United States v. Pinson, 584 F.3d

972, 975 (10th Cir. 2009) (citation omitted).

       On appeal, Gray raises two main arguments: (1) prison officials caused any

defects in his failure to exhaust the requisite administrative remedies and (2) the

defendants should not have been allowed to raise the affirmative defense of non-

exhaustion in their motion for summary judgment. After a careful review of the record,

we agree with the district court that Gray failed to exhaust his available administrative

remedies.

   A. Exhaustion of Administrative Remedies

       “There is no question that exhaustion is mandatory under the PLRA and that

unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211

(2007) (citing Porter v. Nussle, 534 U.S. 516, 524 (2002)). An inmate properly exhausts

a claim by utilizing each step the prison holds out for resolving the claim internally and

by abiding “with an agency’s deadlines and other critical procedural rules.” Woodford v.

Ngo, 548 U.S. 81, 90 (2006). Critically, “[a]n inmate who begins the grievance process

but does not complete it is barred from pursuing a § 1983 claim.” Thomas v. Parker, 609

F.3d 1114, 1118 (10th Cir. 2010) (internal quotation marks and citation omitted).



                                                3
       But an inmate need only exhaust those administrative remedies that are available.

See Little, 607 F.3d at 1250 (citation omitted). “Where prison officials prevent, thwart,

or hinder a prisoner’s efforts to avail himself of an administrative remedy, they render

that remedy ‘unavailable’ and a court will excuse the prisoner’s failure to exhaust.” Id.

(citation omitted).

       The administrative grievance process for Oklahoma inmates is well documented.1

With this framework in mind, we review the dismissal of Gray’s claims. Gray’s first

argument is that any defects in the exhaustion process “were procured from the action(s)

and inaction(s) of prison officials.” Aplt. Br. at 3. At issue are five grievances and one

appeal during the time period relevant to this action.2 We address each grievance in turn.

       First, in Grievance 2015-34 (received September 25, 2015), Gray sought a

response to a Request to Staff (“RTS”) he submitted on August 10, 2015. ROA Vol. I at

53. But this grievance was returned unanswered on account of Gray’s failure to attach

the RTS. Id. at 52. After all, the ODOC process requires that an RTS accompany the



       1
          The ODOC has a four-step process for administrative exhaustion of inmate
claims. Initially, an inmate must seek to resolve any complaint by informally raising the
matter with an appropriate staff member within three days of the incident. See ROA Vol.
II at 154. If the matter is not resolved, the inmate must submit a Request to Staff. Id. If
the matter still remains unresolved, the inmate may file an “Offender Grievance Form”
with the appropriate reviewing authority. Id. at 156. After receiving a response to one’s
formal grievance, the inmate may appeal that decision to the Administrative Review
Authority (“ARA”) or to the Health Services Administrative Review Authority. Id. at
159–60. Only upon proper completion of all four steps has the inmate exhausted
administrative remedies. See Little, 607 F.3d at 1249.
        2
          It should be noted at the outset that Gray failed to grieve his claim that the denial
of treatment was based on race. And ODOC’s process makes clear that discrimination is
one of the categories signaled as appropriate for resolution. See ROA Vol. II at 154.
                                               4
grievance. See ROA Vol. II at 156 (“If a complaint is not resolved informally, the

offender may obtain and complete the ‘Offender Grievance Form’ (DOC 090124A) and

submit the grievance form, along with the ‘Request to Staff’ . . . to the appropriate

reviewing authority.”). Once notified of this deficiency at the formal grievance stage,

Gray failed to amend the grievance or file an appeal.3 Id. at 451.

       Grievance 2015-35 (received September 28, 2015) concerned the same RTS at

issue in Grievance 2015-34. Id. In this grievance, Gray requested amongst other actions

to receive compensation for how long it took him to receive treatment. Id. at 171. On

December 3, 2015, Gray submitted a follow-up grievance to the Medical Services

Administrator, Buddy Honaker, requesting that the Health Services Administrator,

Patricia Sorrels, respond to Grievance 2015-35. Id. at 173. On January 7, 2016, Honaker

returned Gray’s grievance “unanswered” for two procedural defects: contravening prison

policy by requesting monetary compensation and using an “obsolete” form. Id. at 174.

The ODOC’s Offender Grievance Process states in II.B. that “[g]rievances shall not be

submitted requesting monetary compensation.” Id. at 152. Gray’s next available option

would have been to resubmit the grievance within 10 calendar days of this notice of

improper filing. Id. at 156–57. But he failed to do so. Nor is there any record of Gray

having submitted an appeal for this grievance. Id. at 451.


       3
         Also problematic for Gray was that he submitted Grievance 2015-34 after the
relief he requested in his August 10, 2015 RTS had already been granted. In this RTS,
Gray requested medication, an x-ray, and other treatment for his knees. See ROA Vol. II
at 169. But he received x-rays on August 17, 2015 and a Naprosyn prescription on
September 2, 2015. See id.; Aple. Br. at 8 n.1.

                                             5
       In Grievance 2015-40, submitted October 6, 2015, Gray stated he was “accousted

[sic] and assaulted by my former cell partner.” Id. at 176. He sought a policy change

regarding psychiatric medications, and he requested compensation for his injuries. Id.

Although this grievance represents the sole one Gray appealed, Grievance 2015-40 does

not concern any of the claims remanded by this Court for consideration. Sorrels, 744 F.

App’x at 574. In fact, we specifically dismissed a claim against several defendants

concerning Gray’s cellmate’s need for antipsychotic medication. Id. at 571.

       On October 21, 2015, Gray submitted a “Sensitive” grievance requesting a

response to Grievance 2015-35 and an end to perceived retaliation for his grievance

activity. ROA Vol. II at 186. The Medical Services Administrator returned this

grievance unanswered, in part, because he determined Gray’s grievance did not qualify as

sensitive under ODOC’s Offender Grievance Process section VIII.A. See id. at 188.

Although Gray could have appealed this decision, he failed to avail himself of this option.

See id. at 163 (“The offender may appeal that response [about whether this grievance is in

fact an emergency or sensitive grievance] . . . .”).

       Finally, Gray submitted Grievance 2016-03 on January 22, 2016. He requested an

MRI to determine “what the true issue is” with his knees, and he wanted approval for a

knee sleeve for his left knee. Id. at 342. Three days later, this grievance was returned

unanswered, because Gray included other attachments instead of the required RTS. Id. at

343. Once again, Gray took no steps to amend this grievance. And the record indicates

he did not appeal this decision. Id. at 452.



                                               6
       Throughout his opening and reply briefs, Gray repeatedly asserts that prison

officials Sorrels and Honaker “thwarted, hindered, prevented, and frustrated [him] by

hindering him [from] avail[ing] himself” of the proper grievance procedures. See, e.g.,

Aplt. Br. at 2. As for the manner in which they prevented him from exhausting the

administrative remedies, Gray offers that “former Appelles [sic] Patricia Sorrels and

Buddy Honaker actions and inactions are the direct results in the defects in exhaustion.”

Id. at 3(e). Without pointing to any particular instance, he claims they broadly provided

him untimely responses. Id. at 3(h). Gray’s contentions are unsupported by the record.

As best we can tell, Gray’s failure to exhaust four of his grievances ultimately rests with

himself: he failed to properly submit these grievances in compliance with ODOC’s

procedural rules. And the one grievance he actually appealed concerned issues

previously dismissed by our court.

       Even if prison officials had been untimely in responding to Gray, ODOC’s

grievance process offered him opportunities to rectify the situation. For example, if 30

calendar days passed with no response to an RTS, then the process permitted Gray to file

a grievance to the reviewing authority requesting a response. See ROA Vol. II at 155.

Similarly, if Gray failed to receive a response within 30 calendar days for one of his

formal grievances, then the process empowered him to send a follow-on grievance to the

ARA asserting his grievance was not answered. See id. at 158.

       Neither can we accept Gray’s alternative argument—that “[t]he excessively

technical grievance non-responses can make the administrative remedy unavailable.”

Aplt. Br. at 3(h). That there are multiple procedural steps Gray must comply with to

                                             7
properly exhaust the process does not excuse an inmate’s failure to abide by the rules.

“Exhaustion gives an agency an opportunity to correct its own mistakes with respect to

the programs it administers before it is haled into federal court.” Woodford, 548 U.S. at

89 (internal quotation marks and citation omitted).

       To meet the PLRA's exhaustion requirement, an inmate must “use[ ] all steps that

the agency holds out” in “compliance with an agency's deadlines and other critical

procedural rules.” Id. at 90 (internal quotation marks and citation omitted). This Gray

did not do. Once notified of deficiencies at the formal grievance stage, Gray never

appropriately refiled four of these grievances, and this is enough to bar his claims under

the PLRA. Taking some—but not all—of the steps in the grievance process does not

constitute proper exhaustion. See Thomas, 609 F.3d at 1118. The district court did not

err in concluding that Gray failed to exhaust his available administrative remedies.

   B. Waiver of Exhaustion Defense

       Gray’s second argument is that because the defendants failed to raise the non-

exhaustion defense in their 12(b)(6) motion to dismiss, they should have been precluded

from raising it during their motion for summary judgment. See Aplt. Br. at 3. But the

statutory exhaustion requirement of § 1997e(a) is mandatory, and the district court is not

authorized to dispense with it. For that reason, we have previously declined to find that a

district court erred when it permitted the defendants to raise this exhaustion defense after

the 12(b)(6) stage. See Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1167 n.5 (10th

Cir. 2003) (per curiam) (“Nor are we persuaded that the district court erred in not finding

that defendants had waived their exhaustion defense by waiting so late to raise it.”).

                                             8
                                         III.

      In failing to properly exhaust ODOC’s administrative remedies, Gray is barred

from pursuing his remaining claims under the PLRA. Accordingly, the district court did

not err in granting summary judgment. We therefore AFFIRM.


                                           Entered for the Court


                                           Allison H. Eid
                                           Circuit Judge




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