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

                             FOR THE TENTH CIRCUIT                         November 2, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
PATRICK RYAN,

      Plaintiff - Appellant,

v.                                                         No. 17-6057
                                                    (D.C. No. 5:16-CV-00205-R)
CORRECTIONS CORPORATION OF                                 (W.D. Okla.)
AMERICA; CALIFORNIA
DEPARTMENT OF CORRECTIONS
AND REHABILITATION; KEITH
IVENS,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, O’BRIEN, and MORITZ, Circuit Judges.
                  _________________________________

      Proceeding pro se,1 California prisoner Patrick Ryan appeals the district

court’s order disposing of his 42 U.S.C. § 1983 claims based on Ryan’s alleged




      *
          After examining the briefs and appellate record, this panel has determined
unanimously that oral argument wouldn’t 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 isn’t binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1;
10th Cir. R. 32.1.
        1
          We liberally construe pro se filings. But we won’t act as an advocate for pro
se litigants. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.
2005).
failure to exhaust his available administrative remedies. See id. § 1997e(a). We

affirm.

                                            I

      Ryan brought suit against Corrections Corporation of America (CCA), the

California Department of Corrections and Rehabilitation (CDCR), and CCA

employee Keith Ivens (collectively, the defendants), alleging deliberate indifference

under § 1983. The defendants moved to dismiss, arguing that Ryan failed to first

exhaust his available administrative remedies. See § 1997e(a) (“No action shall be

brought with respect to prison conditions under [§ 1983] . . . by a prisoner confined

in any jail, prison, or other correctional facility until such administrative remedies as

are available are exhausted.”). In support, the defendants provided affidavits

indicating that Ryan failed to comply with CDCR’s grievance policies. See Brodheim

v. Cry, 584 F.3d 1262, 1264–65 (9th Cir. 2009) (describing California’s “multi-tiered

administrative scheme for inmate grievances”). The magistrate judge agreed that

Ryan failed to exhaust all available administrative remedies and recommended

granting the defendants’ motion.2

      Ryan lodged several objections to the magistrate judge’s report and

recommendation. Before ruling on them, the district court concluded that the

      2
        The magistrate judge also recommended denying Ryan’s motion to transfer,
and the district court ultimately adopted that recommendation. In a single sentence in
his opening brief, Ryan asks us to reverse that portion of the district court’s order.
But he provides no argument as to why we should do so. Because “such perfunctory
complaints fail to frame and develop an issue sufficient to invoke appellate review,”
we decline to address this issue. Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th
Cir. 1994).
                                            2
magistrate judge had properly converted the defendants’ motion to dismiss into a

motion for summary judgment. See Brown v. Zavaras, 63 F.3d 967, 969 (10th Cir.

1995). The district court then overruled Ryan’s objections, adopted the magistrate

judge’s report and recommendation, and entered judgment for the defendants. Ryan

appeals.

                                            II

      At the outset, Ryan suggests that the magistrate judge impermissibly converted

the defendants’ motion to dismiss into a motion for summary judgment without

notifying him first. See Fed. R. Civ. P. 56(f). But the district court expressly

concluded that the magistrate judge’s September 6, 2016 order provided the parties

with adequate notice of the conversion. And Ryan neither acknowledges the district

court’s ruling on this point nor “explain[s] to us why [it] was wrong.” Nixon v. City

& Cty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015). Thus, we assume the

magistrate judge provided Ryan with sufficient notice and review the district court’s

order granting summary judgment to the defendants de novo, resolving all factual

disputes and drawing all reasonable inferences in Ryan’s favor. See Argo v. Blue

Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006); Fitzgerald

v. Corr. Corp. of Am., 403 F.3d 1134, 1138 (10th Cir. 2005).

      In challenging that order, Ryan first argues that the district court erred in

failing to accept as true his complaint’s assertion that he “exhausted all available

remedies.” R. vol. 1, 30. But Ryan appears to be laboring under the misapprehension

that the district court was proceeding under the standards that apply to a motion to

                                            3
dismiss. Instead, because the magistrate judge converted the defendants’ motion to

one for summary judgment, the district court correctly noted that Ryan was “required

to rebut [the defendants’] evidence that he failed to exhaust administrative remedies”

with evidence of his own. Id. at 181; see also Self v. Crum, 439 F.3d 1227, 1230

(10th Cir. 2006) (“Unsubstantiated allegations carry no probative weight in summary

judgment proceedings.” (quoting Phillips v. Calhoun, 956 F.2d 949, 951 n.3 (10th

Cir. 1992))). Accordingly, the district court didn’t err in declining to accept as true

the unsupported allegations in Ryan’s complaint.

      Next, Ryan argues that the district court erred in relying on the Martinez

report. See Martinez v. Aaron, 570 F.2d 317, 318–19 (10th Cir. 1978) (describing

process by which district court may order prison officials to conduct investigation

and prepare report so as “to enable the trial court to decide . . . preliminary issues

including those of jurisdiction”). But Ryan doesn’t address the district court’s ruling

that he waived this argument below by failing to timely object when the magistrate

judge initially directed the defendants to prepare the report. See Fed. R. Civ. P. 72(a)

(requiring party to object to magistrate judge’s order within 14 days; explaining that

“[a] party may not assign as error a defect in the order not timely objected to”);

Nixon, 784 F.3d at 1369 (affirming because appellant’s “opening brief contain[ed]

nary a word to challenge the basis of” the district court’s decision). And in any event,

we see no indication that either the magistrate judge or the district court relied on the

Martinez report in a manner that prejudiced Ryan. The magistrate judge referred to

that report only in a footnote that discussed Ryan’s medical records. And the district

                                            4
court didn’t address the report at all, other than to say that Ryan waived any

challenge to it. Thus, any error—assuming one occurred—was harmless. See Palmer

v. Hoffman, 318 U.S. 109, 116 (1943) (explaining that litigant “who seeks to have a

judgment set aside because of an erroneous ruling carries the burden of showing that

prejudice resulted”).

      Ryan next presents various factual allegations that, if true, might conceivably

support an argument that any administrative remedies he failed to exhaust weren’t

“available” to him. § 1997e; see also Ross v. Blake, 136 S. Ct. 1850, 1859–60 (2016)

(listing “three kinds of circumstances in which an administrative remedy, although

officially on the books, is not capable of use to obtain relief”). The problem is that

Ryan doesn’t point to any evidence in the record that might support these factual

allegations. See Fed. R. App. P. 28(a)(8)(A) (requiring argument section of

appellant’s opening brief to contain “citations to the . . . parts of the record on which

the appellant relies”). Accordingly, they don’t provide a basis for reversing the

district court’s judgment.3 See id.; Self, 439 F.3d at 1230.

      Finally, Ryan suggests that he received ineffective assistance of counsel; he

cites Strickland v. Washington, 466 U.S. 668 (1984), and argues that “if counsel had

performed adequately, the result would have been different.” Aplt. Br. 10; see also

Strickland, 466 U.S. at 694 (holding that in order to demonstrate violation of Sixth

      3
        For similar reasons, we decline to address Ryan’s assertion that he “was
denied timely and complete access to his C[entral] File,” Aplt. Br. 10; Ryan fails to
provide a record citation that might support this statement, see Fed. R. App. P.
28(a)(8)(A).

                                            5
Amendment right to counsel, defendant must establish “reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different”). But “as a civil litigant, [Ryan] has no Sixth Amendment right to counsel.”

Johnson v. Johnson, 466 F.3d 1213, 1217 (10th Cir. 2006). Accordingly, this

argument fails.

                                    *      *     *

      We affirm the district court’s order granting summary judgment to the

defendants on Ryan’s § 1983 claims. As a final matter, we construe Ryan’s assertion

that he had insufficient time to prepare his opening brief as a motion for an extension

of time and deny that motion as moot.


                                           Entered for the Court


                                           Nancy L. Moritz
                                           Circuit Judge




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