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

                             FOR THE TENTH CIRCUIT                         March 7, 2019
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
 ARCHIE RACHEL,

       Plaintiff - Appellant,

 v.                                                        No. 18-6053
                                                    (D.C. No. 5:15-CV-00141-R)
 JEFFREY TROUTT, D.O., in his official                     (W.D. Okla.)
 and individual capacities; TAMI
 GROGAN, Health Services Administrator,
 in her official and individual capacities;
 JANET DOWLING, Warden of JCCC, in
 her official and individual capacities;
 GENESE McCOY, Administrative Review
 Authority, in her official and individual
 capacities; CARL PETTIGREW, President
 of the Oklahoma Board of Osteopathic
 Examiners, in his official and individual
 capacities,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, McKAY, and MORITZ, Circuit Judges.
                  _________________________________




      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      Archie Rachel, an Oklahoma prisoner proceeding pro so, appeals the district

court’s grant of summary judgment in favor of defendants in his action under

42 U.S.C. § 1983 alleging claims of deliberate indifference to his serious medical

needs, in violation of the Eighth Amendment. Exercising jurisdiction under

28 U.S.C. § 1921, we affirm.

I.    Background

      Rachel’s claims alleged inadequate medical care while he was housed at the

James Crabtree Correctional Center (JCCC), where Janet Dowling is the Warden,

Tami Grogan is the Health Services Administrator (HSA), and Jeffrey Troutt is a

physician. Genese McCoy is the Medical Services Administrator for the Oklahoma

Department of Corrections (ODOC).1 The district court granted summary judgment

on most of Rachel’s claims due to his failure to exhaust his administrative remedies.

The court held that Rachel had exhausted two claims against Grogan, but that he

failed to come forward with evidence that she was deliberately indifferent to his

serious medical needs.

II.   Discussion

      We review a district court’s grant of summary judgment de novo. Callahan v.

Poppell, 471 F.3d 1155, 1158 (10th Cir. 2006). Summary judgment is appropriate “if

the movant shows that there is no genuine dispute as to any material fact and the



      1
        Rachel raises no claim of error in the district court’s separate dismissal of all
his claims against defendant Carl Pettigrew. Nor does he challenge the court’s
dismissal of his official capacity claims against all defendants.
                                            2
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[W]e look

at the factual record and the reasonable inferences to be drawn from the record in the

light most favorable to the non-moving party.” Self v. Crum, 439 F.3d 1227, 1230

(10th Cir. 2006). But to avoid summary judgment, a plaintiff must come forward

with evidence and cannot rely on “mere speculation, conjecture, or surmise.” Id.

(internal quotation marks omitted). We liberally construe a pro se appellant’s briefs.

Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998).

      A.     Failure to Exhaust Administrative Remedies

      The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), requires

“proper exhaustion of administrative remedies,” Woodford v. Ngo, 548 U.S. 81, 84

(2006). “[P]roper exhaustion . . . means using all steps that the agency holds out, and

doing so properly.” Id. at 90 (internal quotation marks omitted). “[T]o properly

exhaust administrative remedies prisoners must complete the administrative review

process in accordance with the applicable procedural rules—rules that are defined not

by the PLRA, but by the prison grievance process itself.” Jones v. Bock, 549 U.S.

199, 218 (2007) (citation and internal quotation marks omitted).

      ODOC’s grievance process begins with a Request to Staff (RTS). If an inmate

doesn’t resolve an issue through an RTS, the inmate must submit an Offender

Grievance Form. As relevant here, medical grievances are submitted to Grogan, the

HSA at JCCC. The final step of the grievance process is an appeal to the appropriate

Administrative Review Authority (ARA). If a grievance involves a medical issue, it

must be appealed to McCoy, ODOC’s Health Services ARA. The grievance process

                                           3
also includes a special provision allowing inmates to submit grievances of an

emergency nature. “If alleged to be of an emergency or sensitive nature, the

grievance will be screened to determine if it should be handled as an emergency or

sensitive grievance . . . .” R., Vol. I at 112-13.

       Failure to exhaust is an affirmative defense. Jones, 549 U.S. at 216.

Defendants raised Rachel’s failure to exhaust in the district court in their summary

judgment motion. The court held that Rachel failed to exhaust all but two of his

claims.

              1.     Emergency Grievances

       Rachel contends that he exhausted all his claims by submitting two grievances

labeled as emergency grievances to Grogan, JCCC 14-193 and JCCC 14-221. Rachel

complained of stomach and chest pain and sought immediate medical care. He

asserted that his situation was an emergency and he couldn’t wait for a reply to an

RTS. Grogan returned each of these grievances unanswered, noting, “Complaint is

not of a sensitive and/or emergency nature as described in [the grievance policy];

consequently, the standard grievance process outlined in [the policy] must be

followed.” R., Vol. I at 126, 141. Rachel appealed to McCoy, who returned both

appeals unanswered. McCoy told Rachel it was his “responsibility to submit [his]

grievance correspondence properly.” Id. at 129, 144. And she advised him to submit

a Request for Health Services via the sick call process at JCCC. Rachel didn’t

re-submit either grievance through the standard, non-emergency grievance process.



                                             4
      The district court held that Rachel failed to exhaust any claim via his first

emergency grievance, JCCC 14-193, because he didn’t complete the grievance

process. See Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (holding an

inmate who starts the grievance process but doesn’t complete it hasn’t properly

exhausted his administrative remedies). The same reasoning applies to Rachel’s

second emergency grievance, JCCC 14-221.2

      Rachel argues that his emergency grievances were sufficient to exhaust his

administrative remedies because he believed that his situation was an emergency and

he therefore met the requirements for filing emergency grievances. But Grogan

determined, pursuant to the ODOC grievance policy, that JCCC 14-193 and JCCC

14-221 didn’t qualify as emergencies. And the policy gives Grogan, JCCC’s HSA,

the authority to determine whether a grievance labeled as an “emergency” by an

inmate is, in fact, an emergency. R., Vol. I at 104 (designating the HSA as the

Reviewing Authority), 117 (authorizing the Reviewing Authority to determine if a

grievance is an emergency). Rachel can’t rely on his own interpretation of the

grievance process as permitting him, rather than ODOC, to decide what qualifies as

an emergency grievance. See Thomas v. Parker, 609 F.3d 1114, 1119 (10th Cir.

2010) (“Plaintiff’s disagreement with prison officials as to the appropriateness of a


      2
        Although the district court didn’t reach the same holding as to JCCC 14-221,
defendants argued it was procedurally defective in their summary judgment brief and
they repeat that contention on appeal. See Schanzenbach v. Town of Opal, 706 F.3d
1269, 1272 (10th Cir. 2013) (“We can affirm on any ground supported by the record,
so long as the appellant has had a fair opportunity to address that ground.” (internal
quotation marks omitted)).
                                           5
particular procedure under the circumstances, or his belief that he should not have to

correct a procedural deficiency does not excuse his obligation to comply with the

available process.” (internal quotation marks omitted)).

      Rachel’s argument that the defendants nonetheless received adequate notice of

his claims through his improper emergency grievances also lacks merit. See

Jernigan, 304 F.3d at 1032 (rejecting inmate’s contention that he exhausted his

claims because he gave notice to defendants by means other than the grievance

process).

      After determining that Rachel’s grievances didn’t qualify as emergencies,

Grogan directed him to use the standard grievance process. He failed to do so. Thus,

his two emergency grievances, JCCC 14-193 and JCCC 14-221, weren’t sufficient to

exhaust his administrative remedies as to any claim against any defendant.

             2.     Standard Grievance

      Rachel contends that he exhausted claims by submitting grievance

JCCC 14-218 through the standard grievance process. He began the process by

submitting an RTS to Dowling, the JCCC Warden, referencing Grogan’s

determination that JCCC 14-193 didn’t qualify as an emergency. Rachel asked

Dowling what qualified Grogan to be the HSA, and he requested that Dowling get

him qualified medical help. Dowling responded that Grogan met the qualifications

for her position. She also advised Rachel to complete a Request for Health Services,

rather than an emergency grievance, if he needed medical care. In response, Rachel

submitted a grievance to Dowling asking, again, what qualified Grogan to be the

                                           6
HSA. Dowling denied the grievance, repeating her response to the RTS. Rachel

appealed to McCoy, who returned his appeal unanswered, identifying a procedural

defect3 and advising Rachel to submit a Request for Health Services to obtain

medical care.

      The district court held that JCCC 14-218 didn’t exhaust Rachel’s claim that

Dowling demonstrated deliberate indifference toward his extreme pain and a serious

risk of harm by denying JCCC 14-218. We agree. “[A properly completed]

grievance satisfies § 1997e(a)’s exhaustion requirement so long as it provides prison

officials with enough information to investigate and address the inmate’s complaint

internally.” Kikumura v. Osagie, 461 F.3d 1269, 1285 (10th Cir. 2006), overruled on

other grounds as recognized in Robbins v. Oklahoma, 519 F.3d 1242, 1246 (10th Cir.

2008). JCCC 14-218 didn’t concern Dowling’s handling of that same grievance and

therefore didn’t place Dowling on notice of Rachel’s allegation.

      For the same reason, Rachel also failed to exhaust, via JCCC 14-218: (1) his

claims against McCoy that she demonstrated deliberate indifference to his serious

medical needs by wrongfully rejecting his appeals in all three of his grievances;

(2) his claims against Grogan that she answered Requests to Staff that were directed

to Troutt and ignored prisoners’ complaints about Troutt; and (3) his claims against

Troutt that he refused to provide certain medications, look at sores on Rachel’s body,



      3
        Defendants contend on appeal that JCCC 14-218 was procedurally defective,
but they didn’t sufficiently raise this issue in their summary judgment brief. We
therefore decline to affirm summary judgment on this alternative basis.
                                           7
refer Rachel to a specialist, put Rachel on a special diet, and reply to Requests to

Staff. JCCC 14-218 didn’t concern any of these issues and therefore didn’t provide

sufficient notice of these particular claims against McCoy, Grogan, and Troutt to

permit prison authorities to investigate and address them.

      B.     Exhausted Claims Against Grogan

      The district court held that Rachel exhausted, via JCCC 14-218, two claims

against Grogan: (1) that she is unqualified to be the HSA, and (2) that she shouldn’t

have returned his first emergency grievance unanswered. But the court held Rachel

failed to demonstrate a genuine issue of material fact that Grogan was deliberately

indifferent to his serious medical needs.

      To succeed on an Eighth Amendment claim, a prisoner must demonstrate “acts

or omissions sufficiently harmful to evidence deliberate indifference to serious

medical needs.” Self, 439 F.3d at 1230 (internal quotation marks omitted). The

court’s inquiry is comprised of objective and subjective components. Id. “Under the

objective inquiry, the alleged deprivation must be sufficiently serious to constitute a

deprivation of constitutional dimension.” Id. (internal quotation marks omitted).

“[U]nder the subjective inquiry, the prison official must have a sufficiently culpable

state of mind.” Id. at 1230-31 (internal quotation marks omitted). This is “akin to

recklessness”: “consciously disregard[ing] a substantial risk of serious harm.” Id. at

1231 (internal quotation marks omitted). Importantly, negligent diagnosis or

treatment isn’t enough to demonstrate a constitutional violation. Id. at 1230. Thus,



                                            8
“the subjective component is not satisfied, absent an extraordinary degree of neglect,

where a doctor merely exercises his considered medical judgment.” Id. at 1232.

      The district court held that Rachel’s first claim against Grogan failed because

he presented no evidence regarding her alleged lack of qualifications. We affirm

summary judgment on that claim because Rachel fails to address the district court’s

ruling in his appeal briefs. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.

2007). The district court held that Rachel’s second claim against Grogan failed

because there is no genuine dispute that he received medical care for the health issues

he raised in his first emergency grievance. The court reasoned that, “[c]onsidering

[Grogan’s] evidence that medical staff treated [Rachel’s] issues, [he] cannot show

that Grogan was deliberately indifferent to a serious medical need for merely

instructing [him] to utilize the non-emergency grievance process.” R., Vol. I at

535-36.

      Rachel acknowledges that he received medical care, but he contends it wasn’t

adequate. As the district court held, however, a disagreement with a provider’s

medical judgment regarding appropriate treatment is insufficient to demonstrate

deliberate indifference. See Gee v. Pacheco, 627 F.3d 1178, 1192 (10th Cir. 2010)

(“Disagreement with a doctor’s particular method of treatment, without more, does

not rise to the level of an Eighth Amendment violation.”). Rachel asserts that the

inadequacy of the treatment he received was obvious to his medical providers, but he

fails to develop that argument or point to any evidence supporting it. See Walters v.

Wal-Mart Stores, Inc., 703 F.3d 1167, 1173 (10th Cir. 2013) (“While we liberally

                                          9
construe [an appellant’s] pro se filings, we will not assume the role of advocate and

make his arguments for him.” (internal quotation marks omitted)). We therefore

affirm the district court’s grant of summary judgment on Rachel’s

deliberate-indifference claim against Grogan based upon her rejection of his first

emergency grievance.

III.   Conclusion

       We affirm the district court’s judgment.

       Rachel’s request to proceed on appeal without prepayment of filing and

docketing fees is granted. The relevant statute, 28 U.S.C. § 1915(a)(1), doesn’t

permit litigants to avoid payment of filing and docketing fees, only prepayment of

those fees. Since we have reached the merits of this matter, prepayment of fees is no

longer an issue, but Rachel remains obligated to pay all filing and docketing fees by

continuing to make partial payments until the entire appellate filing fee is paid.


                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge




                                           10
