UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ BRIAN LAMONT SWEENEY, Plaintiff - Appellant,

v. DR. (FNU) ALLRED; DR. NIXON ROBERTS; CAPTAIN (FNU) KLINE;WARDEN (FNU) T.K. COZZARHODES, Defendants - Appellees. No. 18-1170 (D.C. No. 1:17-CV -00150-WJM-MLC) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

___________________ ______________ Before LUCERO , HARTZ , and McHUGH , Circuit Judges.

________________ _________________ Plaintiff Brian Lamont Sweeney a ppeals from the entry of summar y judgment against him by the United State s District Court for the Distric t of Colorado. The district court ruled that Plaintiff failed to exhaust his administrative remedies as required under the Prison Litigation Reform Act (PLRA). Exercising jurisdicti on under 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appellate record, this panel h as determined unanimously that oral argument would not mat erially assist in the determina tion of this appeal. See Fed. R. App. P. 34(a)(2); 10th Ci r. R. 34.1(G). The case is th erefore ordered submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 valu e consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 30, 2018
Elisabeth A. Shumaker Clerk of Court2 I. BACKGROUND Plaintiff, a federal prisoner pr oceeding pro se, filed a compla int alleging that certain personnel at the Florence, Colorado penitentiary where he was held—Defendants Dr. Allred, Dr. Nixon Roberts, Cap tain Kline, and Warden T.K. C ozza-Rhodes—acted with deliberate indifference to h is medical needs in violation of the Eighth Amendment. According to the complaint, on or about February 21, 2015, Plai ntiff slipped in his cell at the Florence facility, injuring hi s jaw and loosening several t eeth. He claims that prison personnel did not believe that he had slipped in his cell and s ent him to the Special Housing Unit (SHU) without provid ing treatment until he changed his story. He says he was denied medical treatment un til on or about March 6, when Wa rden Cozza-Rhodes visited the SHU and ordered a dental evaluation. Plaintiff the reafter had seven teeth removed, allegedly because of t he delay in his treatment. The Bureau of Prisons requires in mates to satisfy a three-step formal process to exhaust a grievance: (1) “file a formal Administrative Remedy Request (BP-9) with the Warden,” (2) appeal “to the Regio nal Director within 20 days of the denial of the BP-9,” using a BP-10 form, and (3) “file a final appeal on the BP-11 f orm to the National Appeals Administrator in the Bu reau’s Office of General Counsel , Central Office, within 30 days of the denial of the BP-10.” R. at 57. On April 22, 2015, Plaintiff file d a BP-9. After he submitted a request for a response in July 2015, he receive d an “Informal Resolution Form Response” stating that he could consider the lack of resp onse from the Warden as a den ial of his claim and3 proceed to “request a BP-10 . . . form.” Id. at 119. Plaintiff also filed Administrative Remedy Requests with the regional and national offices on June 15 and August 14 respectively. The first was rej ected because it was improperly marked as “sensitive.” The second was rejected because it too was improperly marked as sensitive and also because it was submitted at the wrong level. Both offices rema nded the requests to the prison for an answer. On September 18, Warden Cozza-Rhodes issued a formal response t o Plaintiff’s BP-9, finding Plaintiff’s “alle gation of staff misconduct . . . without merit.” R. at 80. Plaintiff submitted three appeals of that decision to the Regio nal Office. The first appeal was rejected because Plaintiff fail ed to attach the Warden’s Se ptember 18 response. The next two appeals were rejected a s untimely, but the Regional Of fice provided Plaintiff the opportunity to submit a “staff ver ification letter” showing tha t the untimeliness was not his fault. R. at 179. After obtai ning the needed verification , Plaintiff again filed an appeal with the Regional Office on January 25, 2016. The Regio nal Office considered but denied the appeal on Februa ry 5, and Plaintiff appealed tha t decision to the Central Office on March 8. The Central O ffice rejected the appeal on M arch 23 because Plaintiff failed to submit the Warden’s resp onse to his BP-9. Although t he Central Office gave him 15 days to remedy this defect , records in SENTRY, a nationa l databased maintained by the Bureau of Prisons, do not reflect resubmission of the ap peal. On January 17, 2017, Plaintiff file d his complaint in district court under Bivens v. Six Unknown Named Agents of th e Federal Bureau of Narcotics , 403 U.S. 388 (1971).4 Defendants moved for summary jud gment for failure to exhaust ad ministrative remedies, and a magistrate judge recommended granting the motion. The di strict court adopted the recommendation. It said that a h andwritten notation made by Pl aintiff, which reflected that he resubmitted his claim to the Central Office within the 15 days allotted, did not raise an issue of material fact about whether Plaintiff exhaust ed his claim, given the evidence from the SENTRY database to the contrary and the absen ce of evidence on when the notation was written.
II. DISCUSSION We review de novo the district c ourt’s grant of summary judgmen t for failure to exhaust. See Jernigan v. Stuchell , 304 F.3d 1030, 1032 ( 10th Cir. 2002). Summary judgment is appropriate if “there is no genuine dispute as to a ny material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Ci v. P. 56(a). Because Plaintiff is acting pro se, we w ill construe his filings libera lly. See Haines v. Kerner , 404 U.S. 519, 520 (1972). The PLRA requires that “[n]o a ction . . . be brought with respe ct to prison conditions under secti on 1983 of this title, o r any other Feder al law, by a prisoner confined in any jail, prison, o r other correctional facility un til such administrative remedies as are available are e xhausted.” 42 U.S.C. § 1997e(a) . For actions filed with the Bureau of Prisons, exhaustion requires satisfying the three -step process outlined above. But an inmate need not exh aust administrative remedies that are “unavailable,” such as when “prison administr ators thwart inmates from taking advantage of a grievance5 process through machin ation, misrepresenta tion, or intimidation .” Ross v. Blake , 136 S. Ct. 1850, 1858, 1860 (2016). Plaintiff contends that the dist rict court ignored his argument —raised for the first time in Plaintiff’s objections t o the magistrate judge’s recomm endation—that Defendants thwarted Plaintiff’s attempts to exhaust his administrative rem edies. He argues that the delay in procuring a formal res ponse to his BP-9 from the warde n hindered his efforts to exhaust his claim. But he provi des no explanation for why he c ould not have complied with the Central Office’s directiv e of March 23, 2016, to resub mit the warden’s response to his BP-9, which he had rece ived months earlier. Plaintiff h as thus failed to demonstrate that his administrat ive remedies were unavailable b y reason of Defendants’ obstruction. We note that Plaintiff does not argue in this court, as he did in district court, that a handwritten notation purportedly marking the date he resubmitte d his appeal to the Central Office raises an issue of material fact about whether h e exhausted his claim. His only mention on appeal of the han dwritten notation is to say th at the district court discussed the note when it shoul d have addressed his hindrance argument.
III. CONCLUSION We AFFIRM the district court’s entry of summary judgment. We GRANT Plaintiff’s motion to proceed in forma pauperis . We remind Plaintiff that this status “eliminates only the need for p repayment of the filing fee. [H e] remains obligated to pay6 the filing fee in monthly installments.” Rachel v. Troutt , 820 F.3d 390, 399 (10th Cir. 2016); see 28 U.S.C. § 1915(b)(1).

Entered for the Court

Harris L Hartz Circuit Judge