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

                             FOR THE TENTH CIRCUIT                         June 20, 2018
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
STEPHEN CRAIG BURNETT,

      Plaintiff - Appellant,

v.                                                         No. 17-7061
                                              (D.C. No. 6:12-CV-00158-RAW-SPS)
KATHY MILLER; RAYMOND                                      (E.D. Okla.)
LARIMER; NANCY COLPETZER;
MARK REIHELD,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, MATHESON, and EID, Circuit Judges.
                  _________________________________

      Stephen Craig Burnett, an Oklahoma prisoner proceeding pro se, sued several

prison officials under 42 U.S.C. § 1983 for violating his Eighth Amendment rights by

placing him in a medical cell that lacked heat and where he received no food or drink

for a day and a half. The district court granted summary judgment against him

because he failed to exhaust his administrative remedies. We exercise jurisdiction

under 28 U.S.C. § 1291 and affirm.

      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
I. Background

      After complaining of shortness of breath and chest pain, Mr. Burnett was sent

to the prison’s medical clinic. An electrocardiogram yielded abnormal results, and

medical staff determined that Mr. Burnett should be sent for further testing. While

those arrangements were being made, Mr. Burnett was placed in a medical cell.

Mr. Burnett alleges that the cell was unheated and that he received no food or drink

while he remained there for a day and a half before being transported to the hospital.

Three days later, Mr. Burnett had three stents placed in his heart. He was discharged

back to the prison the following day.

      Months later, Mr. Burnett filed this action. After the district court granted the

defendants’ motion for summary judgment, we remanded the case because the court

had overlooked Mr. Burnett’s claim regarding the conditions in the medical cell.

Burnett v. Miller, 631 F. App’x 591 (10th Cir. 2015). The defendants then filed

another motion for summary judgment, arguing that Mr. Burnett failed to exhaust

available administrative remedies with respect to this claim. The district court

granted the motion.

      Mr. Burnett concedes that, because he failed to comply with the prison’s

grievance procedure, he failed to exhaust his administrative remedies on this claim.

Citing Ross v. Blake, 136 S. Ct. 1850 (2016), he argues that he was not required to

exhaust the grievance procedure because no administrative remedy was available.




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II. Analysis

      We review de novo the district court’s grant of summary judgment. Tuckel v.

Grover, 660 F.3d 1249, 1251 (10th Cir. 2011). Summary judgment is appropriate

only if “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(c). In applying this standard, we

view the evidence in the light most favorable to Mr. Burnett. See Tuckel, 660 F.3d at

1251. We liberally construe Mr. Burnett’s pro se pleadings. See Mayfield v.

Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016).

      Under the Prison Litigation Reform Act (PLRA), “available” administrative

remedies must be exhausted before filing a § 1983 claim challenging prison

conditions. See 42 U.S.C. §1997e(a). This requirement applies “[e]ven where the

available remedies would appear to be futile at providing the kind of remedy sought.”

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

omitted). But “an inmate is required to exhaust . . . only those[] grievance

procedures that are ‘capable of use’ to obtain ‘some relief for the action complained

of.’” Ross, 136 S. Ct. at 1859 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)).

      In Ross, the Supreme Court noted “three kinds of circumstances in which an

administrative remedy, although officially on the books, is not capable of use to

obtain relief” and is therefore unavailable. Id. First, a procedure is unavailable when

“it operates as a simple dead end—with officers unable or consistently unwilling to

provide any relief to aggrieved inmates.” Id. Second, “an administrative scheme

might be so opaque that it becomes, practically speaking, incapable of use,” such as

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when the rules are so confusing that no reasonable prisoner can use them. Id. Third,

a procedure is unavailable “when prison administrators thwart inmates from taking

advantage of a grievance process through machination, misrepresentation, or

intimidation.” Id. at 1860.

      Mr. Burnett argues that an administrative remedy was unavailable to him for a

number of reasons. He first argues that he was unable to meet the deadlines for

initiating the grievance procedure “through no fault of his own.” Aplt. Opening Br.

at 4. He explains that he was still in the hospital three days after leaving the medical

cell, and, upon his return to the prison, he was on medications that rendered him “not

in a clear, normal state of mind within 7 calendar days of being in the medical cell,

and simply not capable of submitting a [request to staff] complaining about the

conditions in the medical cell.” Id. However, though the first steps of the prison’s

grievance procedure normally require a prisoner to make an initial attempt to resolve

a complaint informally by speaking with an appropriate prison official within three

days of the incident and to then, if the issue is not resolved, submit a request to staff

within seven days of the incident, the procedure also provides a process for

submitting a grievance out of time. Because Mr. Burnett offers no explanation for

why he did not attempt to submit a grievance out of time, his contention that “any

further steps in the grievance process would have been futile,” id., is not supported

by the record.

      Moreover, “[e]ven where the available remedies would appear to be futile at

providing the kind of remedy sought, the prisoner must exhaust the administrative

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remedies available.” Jernigan, 304 F.3d at 1032 (internal quotation marks omitted).

Mr. Burnett does not allege that after he recovered from his medical treatment the

procedure for filing a grievance out of time was not available to him.

      His contention that the grievance procedure “offers no available relief”

because “monetary relief and discipline to staff are non-grievable issues,” Aplt.

Opening Br. at 12, is also unavailing. “Congress meant to require procedural

exhaustion regardless of the fit between a prisoner’s prayer for relief and the

administrative remedies possible.” Booth, 532 U.S. at 739. Mr. Burnett’s related

contention that the defendants should bear the burden of identifying what relief is

available has no basis in law. He is correct that the failure to exhaust is an

affirmative defense and that the burden of proof is on the defendants. See Roberts v.

Barreras, 484 F.3d 1236, 1241 (10th Cir. 2007) (“[T]he burden of proof for the

exhaustion of administrative remedies in a suit governed by the PLRA lies with the

defendant.”). But it is undisputed that Mr. Burnett did not attempt to comply with

the grievance procedure with respect to this claim, so the defendants have met their

burden of showing that there is no genuine dispute as to any material fact regarding

Mr. Burnett’s failure to exhaust his administrative remedies.

      Mr. Burnett also argues that rules of the grievance procedure are so opaque

that no reasonable prisoner can use them. But he does not dispute the district court’s

finding that he filed at least eleven grievances in a six-month period encompassing

the date on which he filed his complaint. R., Vol. 2 at 262; see also Burnett v.

Allbaugh, 715 F. App’x 848, 850 (10th Cir. 2017) (pointing out that “of the seven

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prior lawsuits [Mr. Burnett] claims were dismissed in whole or in part for failure to

exhaust, only two were actually dismissed on that basis”). In light of his

demonstrated familiarity with the grievance procedure, his argument that it is so

confusing that it is incapable of use lacks merit.

III. Conclusion

      We affirm the judgment of the district court.


                                            Entered for the Court


                                            Allison H. Eid
                                            Circuit Judge




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