                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                      June 4, 2014
                      UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                                    TENTH CIRCUIT


 JANOS TOEVS,

          Plaintiff - Appellant,

 v.                                                      No. 13-1476
                                            (D.C. No. 1:12-CV-02532-REB-MEH)
 KEVIN MILYARD; RICK                                      (D. Colo.)
 RAEMISCH, CDOC, Executive
 Director, in his official capacity;
 ARISTEDES ZAVARES; CAPTAIN
 WHITNEY; C.O. MERRILL; C.O.
 RALSTON; BERNADETTE SCOTT;
 SGT. CHRISTIANS, in their official
 and individual capacities,

          Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and BACHARACH, Circuit Judges. **


      Plaintiff-Appellant Janos Toevs, a state prisoner proceeding pro se, appeals

from the partial dismissal of his civil-rights complaint and grant of summary

      *
        This order and judgment is not binding precedent, except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
judgment for the defendants on the remaining claims. See Toevs v. Milyard, No.

12–cv–02532-BNB, 2013 WL 1151885 (D. Colo. Mar. 18, 2013) (order

dismissing claims two, four, and five); Toevs v. Milyard, No. 12–cv–02532-REB-

MEH (D. Colo. Oct. 30, 2013) (order granting summary judgment on remaining

claims); 1 R. 191. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.



                                     Background

      Mr. Toevs sued the defendants, various officials at Sterling Correctional

Facility (SCF) in Sterling, Colorado, under 42 U.S.C. § 1983, alleging (1)

retaliation for his exercise of free speech; (2) denial of access to the courts; (3)

denial of his right to send and receive mail; (4) denial of equal protection; and (5)

cruel and unusual punishment. 1 R. 39-46.

      Mr. Toevs’s first claim stemmed from a meeting about SCF’s Incentive Pod

(I-Pod), a housing unit where inmates are afforded extra privileges for sustained

good behavior. Toevs, 2013 WL 1151885, at *1; see also Toevs v. Reid, 685 F.3d

903, 908 (10th Cir. 2012) (indicating that Mr. Toevs was released from

administrative segregation into the general population in March 2009). SCF’s

warden, Kevin Milyard, discussed several I-Pod issues, which Mr. Toevs thought

amounted to telling I-Pod inmates they were “subject to a higher standard which

included being held accountable for the behavior of others.” 1 R. 130. The

warden stopped to ask Mr. Toevs, “Do you have a problem with that?” Id. at 39.

                                         -2-
Mr. Toevs responded, “Yes, actually I do.” Id. Mr. Toevs was ordered to leave

the meeting and was removed from I-Pod at the warden’s discretion. Id. His

removal—and three-week placement in solitary conditions—was in retaliation for

exercising his right to free speech, he alleged. Id. at 39-40.

      His second claim challenged SCF’s grievance system, alleging that

procedural inadequacies prevented inmates from bringing claims to court. 1 R.

41. Specifically, he listed three claims that he would have grieved but for the

prison’s failure to respond to his requests for grievance forms and failure to

respond to a grievance he did file. Id.

      His third claim challenged SCF’s mail-screening procedure, alleging that

the prison confiscated and destroyed “any mail which can be construed as critical

of its policies or intended to expose abuses at the facility.” Id. at 42. He alleged

that he responded to a request by the Colorado Prison Law Project (CPLP) for

information concerning the conditions at SCF. Id. He attempted to mail CPLP a

packet of information regarding his claims as well as legal documents “bearing

the names of inmates other than [himself].” Id. SCF confiscated the packet on its

way out, responding that it contained “legal mail not of the senders.” Id.

Additionally, Mr. Toevs alleged he received notice of a letter sent to him by an

attorney who was assisting him; however, SCF intercepted the letter because it

contained “other offender’s legal work.” Id.

      His fourth claim challenged SCF’s housing-assignment policy, alleging that

                                          -3-
the prison placed similarly situated inmates in markedly different housing

conditions based on the “luck of the draw.” Id. at 43. He alleged that his

arbitrary placement in Building 4-B allowed him one and one-half to two hours of

out-of-cell time per day, whereas similarly situated inmates—“same custody

level,” “same sentences,” “same crime”—in Building 3 were allowed over

thirteen hours of out-of-cell time per day. Id. This disparate treatment continued

until he was returned to I-Pod in November 2012; however, he remained subject

to arbitrary treatment because his I-Pod placement was subject to “staff’s

discretion.” Id.

      His final claim alleged that the cumulative effect of these policies

“result[ed] in heightened inmate aggression and increased staff abuse.” Id. at 44.

Specifically, SCF’s “speech suppression” and housing policies resulted in an

“increasingly violent and progressively perilous environment to both inmates and

staff.” Id. at 45. The prison was a tinderbox, he alleged, posing the substantial

risk that he could be seriously harmed in an outbreak of violence at any moment.

Id. He also alleged that SCF’s “zero tolerance” policy in the dining hall resulted

in him being denied nine consecutive meals over a three-day period. Id. at 46.

      On March 18, 2013, the district court conducted an initial review of the

amended complaint and dismissed claims two, four, and five as legally frivolous

under 28 U.S.C. § 1915(e)(2)(B). Toevs, 2013 WL 1151885, at *5. Claims one

and three were referred to a magistrate judge for further proceedings. Id. On

                                        -4-
August 1, 2013, the magistrate judge recommended that the defendants’ Motion to

Dismiss or Motion for Summary Judgment be granted. 1 R. 173. Specifically,

the court found that the Eleventh Amendment barred claims one and three to the

extent they sought money damages against the defendants in their official

capacities, but that the court had jurisdiction to the extent they sought injunctive

relief. Id. at 167-68. However, the magistrate judge concluded that Mr. Toevs

failed to exhaust his available administrative remedies as required by the Prison

Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), and therefore recommended

granting the defendants’ motion for summary judgment. Id. at 170-73. On

October 30, 2013, the district court adopted the magistrate judge’s

recommendation and in pertinent part dismissed Mr. Toevs’s remaining claims

(other than for money damages, which were dismissed with prejudice) without

prejudice. Id. at 193-94. Mr. Toevs appealed to this court.



                                     Discussion

      We have construed Mr. Toevs amended complaint liberally, mindful that

the rules of procedure apply to all and we may not act as an advocate for a pro se

litigant. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

1.    Failure to Exhaust Available Administrative Remedies

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

                                         -5-
standard used by the district court. Timmons v. White, 314 F.3d 1229, 1232 (10th

Cir. 2003). In response to a properly supported summary judgment motion, the

nonmovant must present specific facts by affidavit or other evidence that

demonstrate a genuine dispute of material fact. Fed. R. Civ. P. 56(c)(1)(A).

      Mr. Toevs argues that the district court failed to give his pleadings a liberal

construction when it held that he failed to exhaust available administrative

remedies. Aplt. Br. 6-7, 9. He argues that he exhausted his available

administrative remedies because he “checked the box” indicating proper

exhaustion on his sworn complaint. Aplt. Br. 3. Accordingly, his “sworn

assertion” creates a genuine dispute of material fact regarding exhaustion, he

argues. Id. at 4, 5, 10, 11.

      We disagree. What constitutes proper exhaustion under the PLRA is

generally a legal conclusion. Legal conclusions, even if made in affidavit form,

are not enough to defeat summary judgment. See Morgan v. Willingham, 424

F.2d 200, 202 (10th Cir. 1970). Mr. Toevs’s belief that he exhausted cannot

defeat summary judgment given uncontradicted evidence that he did not.

      Turning to that evidence, the magistrate judge held that Mr. Toevs failed to

exhaust his available administrative remedies as to both his first and third claims.

1 R. 169-73. Regarding the first claim—retaliation for exercise of free

speech—Mr. Toevs’s efforts to appeal his removal from I-Pod were insufficient to

put the defendants on notice that he was claiming retaliation against First

                                        -6-
Amendment activity. Id. at 170-71. Mr. Toevs contends that even though he did

not use the word “retaliate” on his internal appeal form, his appeal set forth a

“textbook description of retaliation.” Aplt. Br. 7-8.

      While Mr. Toevs alerted prison officials to the negative action they took

against him, he did not alert them to the basis on which he now challenges that

action—removal because of protected speech. Requiring proper exhaustion

ensures that prison officials have “an opportunity to resolve disputes concerning

the exercise of their responsibilities before being haled into court.” Jones v.

Bock, 549 U.S. 199, 204 (2007). While a prisoner need not allege any particular

legal theory, his grievance must be particular enough as to “provide

administrators with a fair opportunity under the circumstances to address the

problem that will later form the basis of the suit.” Johnson v. Johnson, 385 F.3d

503, 522 (5th Cir. 2004). Even affording a liberal construction, Mr. Toevs’s

statements simply did not indicate that he was removed from I-Pod due to

protected speech. Instead, he inquired, “I’d like to know exactly what I did

wrong, why I was removed from the I-Pod . . . and why I’m housed in 1-A as if

I’ve been convicted of a write up.” 1 R. 130. His First Amendment claim is

therefore unexhausted.

      As an alternative, Mr. Toevs argues that the procedure for grieving

retaliatory housing placement is unavailable because it presents a Catch 22: he

attempted to file a grievance challenging his removal from I-Pod but was

                                         -7-
informed that “I-Pod placement is a classification issue.” Aplt. Br. 4, 19; see also

1 R. 169-70. But when he attempted to file a “classification appeal” challenging

his removal, he learned that “retaliation” is the sole province of the grievance

procedure, which cannot be used to challenge I-Pod placement. Aplt. Br. at 7-8.

      Exhaustion of administrative remedies is required “regardless of the relief

offered through administrative procedures.” Booth v. Churner, 532 U.S. 731, 741

(2001). Even where matters are expressly “‘non-grievable’ under prison policy,”

if prison authorities nonetheless “have the power to render some of the relief

requested,” then exhaustion of administrative remedies is required. Beaudry v.

Corr. Corp. of Am., 331 F.3d 1164, 1167 (10th Cir. 2003). In this case, SCF

officials had the power to render the relief Mr. Toevs requests (although at the

time he only requested “to know exactly what [he] did wrong,” 1 R. 130) yet he

failed to alert officials to the free speech basis of his claim. He has thus failed to

exhaust his first claim.

      Regarding claim three—denial of right to send and receive mail—the

magistrate judge determined that Mr. Toevs failed to grieve either of the incidents

he cited in his complaint: (1) the denial of his right to send mail to CPLP and (2)

the denial of his right to receive mail from an assisting attorney. 1 R. 172. The

court noted that, although Mr. Toevs provided evidence showing that he

completed SCF’s grievance process for mail sent in November 2010, the two

incidents cited in claim three occurred in 2012 and were not grieved. Id.; see id.

                                          -8-
at 42.

         Mr. Toevs concedes that he did not grieve the “specific claims” raised, but

he argues that exhaustion was not necessary because his November 2010

grievance challenged an “ongoing policy problem,” i.e., the denial of the right to

send and receive mail that contained “other offenders’ legal work.” Aplt. Br. 13-

14. We express no opinion on this “continuing violation” theory, but one thing is

apparent: Mr. Toevs cannot assert a “continuing violation” theory for the first

time on appeal. Instead of placing SCF on notice of the continuing nature of his

claim, his 2010 grievance simply alleged one discrete harm—the denial of his

right to send legal mail to a fellow inmate—and sought reimbursement of “$1,000

for [his] time, expenses and expertise.” 1 R. 132. He made no effort to inform

prison officials that his 2012 claims were related to his grieved 2010 claim.

Those claims are therefore unexhausted.

         Mr. Toevs’s allegation that he was “threatened” against grieving his 2012

claims is a stretch. See Aplt. Br. 14. Prison staff did not “threaten him with

[disciplinary] action for implementing the grievance process,” 1 R. 138, but rather

rebuked him for his “inappropriate” request for $1000 in his previous grievance,

id. at 133.

2.       Dismissal of Frivolous Claims

         Mr. Toevs challenges the district court’s early dismissal of his equal

protection (fourth), cruel and unusual punishment (fifth), and access to the courts

                                           -9-
(second) claims as frivolous. Aplt. Br. 15-28.

      First, we agree with the district court’s dismissal of Mr. Toevs’s equal

protection claim, but for a different reason. In this complaint, Mr. Toevs alleged

disparate treatment while housed in Building 4-B; however, at the time he filed

his complaint he had apparently been returned to I-Pod. See 1 R. 43. Transfer

generally moots an inmate’s claims for remedies of declaratory and injunctive

relief. Green v. Branson, 108 F.3d 1296, 1299-1300 (10th Cir. 1997). Because

Mr. Toevs now only seeks injunctive relief, 1 his claim that his time in Building 4-

B denied him equal protection is moot. Moreover, his claim that he is at risk of

being removed from I-Pod based on “staff’s discretion” is too speculative to form

the basis of injunctive relief. See City of L.A. v. Lyons, 461 U.S. 95, 111 (1983).

      We turn to Mr. Toevs’s cruel-and-unusual-punishment claim. Prison

officials violate the Eighth Amendment only when two requirements are met:

“First, the deprivation alleged must be, objectively, sufficiently serious”; that is,

it must constitute a “denial of the minimal civilized measure of life’s necessities.”

Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks and

citations omitted). Second, “a prison official must have a sufficiently culpable

state of mind”; in “prison-conditions cases that state of mind is one of deliberate

indifference to inmate health or safety.” Id. (internal quotation marks and


      1
         On appeal, Mr. Toevs does not challenge the district court’s dismissal of
his claims for monetary damages.

                                        - 10 -
citations omitted). The test for “deliberate indifference” is “subjective

recklessness”; that is, prison officials must possess an actual “consciousness of a

risk” to prisoner health and safety. Id. at 839-40.

      We have reviewed Mr. Toevs’s allegations and agree with the district court

that Mr. Toevs’s disagreement with his conditions of confinement is insufficient

to state a claim absent facts suggesting an objectively serious problem and a

culpable state of mind on the part of prison officials. A one-time denial of “nine

consecutive meals” during a three-day period for various mess hall infractions

simply does not rise to the level of a constitutional violation in the absence of any

lasting harm or injury and a culpable state of mind. Likewise, the allegation that

SCF’s policies and procedures create unsafe conditions at SCF simply is too

speculative to meet the above test.

      Finally, we reject Mr. Toevs’s argument that the district court erred in

rejecting his access-to-the-courts claim. Mr. Toevs’s access-to-the-courts claim

is, in reality, a claim that administrative remedies were “unavailable.” See 1 R.

41. He alleged that he was “unable to exhaust” administrative remedies because

he was not provided with grievance forms on request and did not receive a

response to a filed grievance. Id. Of course, a prisoner is only required to

exhaust those remedies that are “available” to him. 42 U.S.C. § 1997e(a). But

SCF’s failure to provide Mr. Toevs grievance forms and respond to his grievances

did not deny him access to the courts because he nowhere alleges that SCF

                                        - 11 -
prevented him from preparing initial pleadings in a civil action regarding his

confinement or a petition for a writ of habeas corpus. See Carper v. DeLand, 54

F.3d 613, 617 (10th Cir. 1995). He therefore fails to state a claim for a violation

of his right to access to the courts.

      AFFIRMED. 2

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




      2
        Mr. Toevs was granted leave to proceed in forma pauperis below, 1 R. 5,
and we allow his status to carry over on appeal under Fed. R. App. P. 24(a)(3).

                                        - 12 -
