                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                              September 10, 2012
                               TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                  Clerk of Court

 VEAR LEROY BROOKS,

           Plaintiff - Appellant,

 v.
                                                      No. 12-4046
 AMBER WHITEAKER, Nurse at Utah
                                              (D.C. No. 2:09-CV-00163-DB)
 State Prison, a/k/a Amber LNU; JUDY
                                                        (D. Utah)
 MIDDLETON, Nurse at Utah State
 Prison, a/k/a Jane Doe; RAY
 MERRILL, Physician Assistant in
 Olympus Housing Section, a/k/a P.A.,

           Defendants - Appellees.


                          ORDER AND JUDGMENT *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.


      Vear Brooks, a Utah state prisoner, filed this 42 U.S.C. § 1983 action

against three prison medical employees. Mr. Brooks alleges they violated his




      *
         After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 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order and judgment is not binding precedent except under the doctrines of law of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.
constitutional rights by failing to refer him to a doctor after he was assaulted by

his cell mate.

      For its part, the district court granted the defendants’ motion for summary

judgment because Mr. Brooks didn’t show he exhausted his prison’s grievance

procedure. See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to

prison conditions under section 1983 of this title . . . by a prisoner confined in

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

are available are exhausted.”). Mr. Brooks now appeals that decision.

      The problem is, the defendants presented significant and undisputed

evidence that Mr. Brooks didn’t exhaust the remedies available to him.

According to the defendants, the Utah State Prison allows any aggrieved inmate

seven working days to submit a written grievance to the appropriate prison

official. R. at 123. If the official denies the grievance, the inmate may pursue

two levels of appeal before the decision becomes final. Id. at 124-25. Despite

this, Mr. Brooks took more than a year to file his grievance. Id. at 133-35. And,

when it was denied as untimely, he neglected to pursue any appeal. Id. at 107.

Before us, Mr. Brooks does not dispute any material aspect of the defendants’

account. Instead, he asserts only that the district court failed to hear all the facts

of his case. But while we appreciate the difficulties of proceeding pro se, this

bare assertion is not enough to permit us to disturb the district court’s conclusion




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that the undisputed evidence shows he failed to exhaust the administrative

remedies available to him before proceeding to court.

      The judgment of the district court is affirmed. We grant Mr. Brooks’s

motion to proceed on appeal without prepayment of costs or fees, but remind him

that he must continue making partial payments until the filing fee is paid in full.



                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




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