UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ FREDERICK RIDEOUT GRAY, JR., Plaintiff – Appellant,

v. TIFFANY ADE; CAPTAIN HATCHMAN; SERGEANT WRIGHT; A. W. PEREZ; TERRY UNDERWOOD; MAJOR BROWN; MAJOR DORMAN; A. W. GENTRY; JAMES YATES; OFFICER GARRISON, Defendants – Appellees. No. 19-7059 (D.C. No. 6:17-CV -00356-RAW-SPS (E.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HOLMES , MATHESON , and EID , Circuit Judges.

________________ _______________ Appellant Frederick Gray is an inmate held by the Oklahoma Department of Corrections (“ODOC”). He filed this pro se 42 U.S.C. § 1983 ac tion against multiple prison officials who allegedly violated his constitutional right s while he was incarcerated at Davis Correctional Facility (“DCF”), a priv ate prison in Holdenville, Oklahoma. The

* After examining the briefs and appella te record, this pa nel 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 This order and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel. It may be cited, however, fo r its persuasive value consistent with Fed. R. App. P. 32.1 an d 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 12, 2020 Christopher M. Wolpert Clerk of Court2 district court dismissed all but two of Gray’s claims for failure to exhaust the ODOC’s grievance process as required by the Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(a). For Gray’s surviving Eighth Amendment claim, the district court found no factual or legal basis for this argument. As to his remaining property allegation, the district court concluded Gray had failed to establish a proper claim. Exercising jurisdiction under 28 U.S. C. § 1291, we affirm.
I. Because the parties are familia r with the facts of this ca se, we offer details only in connection with our disposition of the issues presented in this appeal. Gray arrived at DCF from the Lawton Correctional Facility in Lawton, Oklahoma on May 30, 2017. Upon intake, prison officials placed Gray with a cellmate, Ezekiel Davis, who had also been recently transferred. W ithin weeks of his arrival to DCF, Gray alleges Davis began verbally and physically abusing him. This harm, at the hands of Davis, re-aggravated some of Gray’s past injuries and resulted in new ailments. Fearful of Davis, Gray alerted prison offi cials to his cellmate’s behavior. As a result, officials separated the two inmates by transferring Gray to a special housing unit (“SHU”). During the course of this move, Gray alleges prison officials lost some of his property. And despite filing missing property claims, Gray contends he only received some of his property. Over the course of the time relevant to this matter, Gray filed 18 grievances regarding an array of issues including alle gations of insufficient medical attention, problems with different roommates, and prop erty concerns. Despite his placement on a3 one-year grievance restriction—which predated his arrival to DCF— Gray brought these grievances. While this label does not precl ude Gray from filing additional grievances, it requires him to undergo a slightly differe nt process to submit a grievance. See ROA Vol.
III at 63

– 64. Gray ultimately sought relief for severa l alleged constitutional violations during his time at DCF. After filing a Martinez report at the direction of the district court, the defendants moved for summary judgment, whic h the district court granted. Gray now appeals.
II. Gray raises three main arguments: (1) pr ison officials caused any defects in his failure to exhaust the requisite administra tive remedies; (2) the defendants failed to adequately protect him; and (3) the defe ndants deprived him of a constitutionally protected property interest. Construing Gray’s pro se complaint with due generosity, see United States v. Pinson , 584 F.3d 972, 975 (10th Cir. 20 09) (citation omitted), we affirm the district court’s grant of summary judgment. A. Exhaustion of Administrative Remedies “We review a district court’s grant of summary judgment de novo, applying the same standard as the district court.” Helms v. Kansas , 656 F.3d 1277, 1284 (10th Cir. 2011) (citation omitted). “There is no questi on that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.” Jones v. Bock , 549 U.S. 199, 211 (2007) (citing Porter v. Nussle , 534 U.S. 516, 524 (2002)). An inmate properly exhausts a claim by ut ilizing each step the prison holds out for resolving the claim4 internally and by abidi ng “with an agency’s deadlines and other critical procedural rules.” Woodford v. Ngo , 548 U.S. 81, 90 (2006). Critica lly, “[a]n inmate who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim.” Thomas v. Parker , 609 F.3d 1114, 1118 (10th Cir. 2 010) (internal quotation marks and citation omitted). The administrative grievance process for Oklahoma inmates is well documented. 1
With this framework in mind, we review the dismissal of Gray’s claims. 2 His first argument is that prison officials “prevented , thwarted, hindered, frustrated, and hampered [him] from availing himself in th e grievance process.” Aplt. B r. at 3(f). As for specifics, Gray alleges that “Defendants Underwood and Yates created excessive procedural technicalities . . . to manipulate the process” thereby “constraini ng him” from completing the process. Id. at 3(d). And so Gray argues su mmary judgment was inappropriate because he substantially complied with the “available” remedies. See Id. at 3.

1 DCF utilizes the ODOC four-step proc ess for administrative exhaustion of inmate claims. Initially, an inmate must seek to resolve any co mplaint by informally raising the matter with an appropriate staff me mber within three days of the incident. See ROA Vol. III at 52. If the matter is not reso lved, the inmate must submit a Request to Staff (“RTS”). Id. at 53. If the matter still remains unresolved, the inmate may file an “Inmate/Offender Grievance Form” (“grieva nce”) with the appropriate reviewing authority. Id. at 54. After receiving a response to one’s formal grievance, the inmate may appeal that decision to the Administra tive Review Authority (“ARA”) or to the Medical Administrative Review Authority. Id. at 58. Only upon pr oper completion of all four steps has the inmate exhausted administrative remedies. See Little , 607 F.3d at 1249. 2 Gray states that “[t]his case only deals w ith [the] necessity to exhaust five of the numerous grievances” he filed, see Aplt. Br. at 3, but he fails to specify which grievances are at issue. Accordin gly, we review all of the grievances discussed by the district court and defendants.5 The record, however, shows otherwise. Though Gray began th e grievance process for his claims, he largely failed to correct cite d procedural defects in his grievance forms. In fact, the same defect impacted many of Gray’s grievances. Because Gray was placed on a one-year grievance restricti on as of April 10, 2017, which predated his May 31, 2017 arrival to DCF, see ROA Vol. III at 41, he needed to comply with additional requirements in order to submit a grievance. The applicable ODOC po licy states that an offender on grievance restriction must: “submit a duly verified affidavit . . . attach ed to the grievance . . . contain[ing] a complete, accurate and legi ble list . . . of all grieva nces previously submitted by the inmate/offender within the last 12 mont hs [and] [e]ach page of the affidavit must be legible and signed, verified, an d notarized at the end of the text.” Id. at 63

– 64. Along with other procedural errors , many of Gray’s grievances failed to fully comply with th e submission process for those on a grievance restriction. All five of the grievances Gray file d on June 7, 2017 suffered from multiple procedural defects including a failure to in clude the proper documentation. As such, these grievances—Grievances 17-139, 17 -140, 17-141, 17-142, and 17-143—were returned unanswer ed to him on June 9, 2017. See id. at 41

– 42 (affidavit from DCF Grievance Coordinator Terry Underwood noting different procedural defects); see, e.g. , id. at 70 (Grievance 17-139 returned unanswer ed due to failure to include notarized affidavit); id. at 75 (Grievance 17-140 returned unanswered for similar reasons). Gray’s later grievances continued to de viate from the required procedures. For example, officials received Gr ievance 17-160 on June 27, 2017. Two da ys later, it was returned unanswered for several reasons—including that the attached “Request to Staff”6 (“RTS”) form was never answered. Id. at 103, 107. In accordance with ODOC regulations, Gray was permitted to resubmit. See id. at 104. But he needed to refile “within 10 days of notice of improper filing.” Id. at 55. Yet Gray was untimely in his resubmission—refiling Grievance 17-160 over ten days late on July 17, 2017. Id. at 151. The four grievances he filed on July 19, 20 17 contained similar procedural defects. His Grievance 17-187 was return ed unanswered for attaching an “incorrect” affidavit. Id. at 172. Once notified of this deficiency, Gr ay could have resubmitted a proper grievance and affidavit within 10 days of this notice of improper filing. Id. He failed to do so. Among other issues, Grievances 17- 188 and 17-189 were both untimely. Id. at 190, 194, 210, 214. And Grievance 17-1 90 requested a transfer to a nother facility—an issue that fell outside the scope of wh at could be grieved. Id. at 52, 231. Then on September 1, 2017, officials received two grie vances Gray characterized as “Sensitive.” Grievance 17-222 was retu rned unanswered, because he once again improperly utilized this pr ocess to request a transfer to another facility. Id. at 268, 270. The reviewing official also de termined this grievance did not qualify as sensitive. Id. at 269. 3 Furthermore, Gray was indeed seen by a mental healthcare provider on August 16 and August 21, which addressed the comp laint raised in this grievance. Id. at 272. Grievance 17-223 was returned unansw ered for a number of reasons. Id. at 273

– 74. Despite being afforded an opportunity to refile, id. at 274, Gray did not do so.

3 Gray could have appealed this decision, but he failed to avail himself of this option. See ROA Vol. III at 62 (“The inmate/offender may ap peal that response [about whether this grievance is in fact an emergenc y or sensitive grievance] . . . .”).7 Between September 12 and September 25, 2017, Gray filed four additional grievances—but all were out of complia nce. Grievance 17-233 was returned unanswered, because it concerne d a non-grievable issue: property issues at a privately contracted facility. 4 Id. at 50, 278. Grievance 17- 234 contained multiple issues, including an impermissible request fo r transfer to another facility. Id. at 282. Among other issues, Grievance 17-236 failed to list a specific date of incident. Id. at 285. Finally, Grievance 17-244 contained an untimely RTS. Id. at 292. Gray’s contention that prison official s “thwarted” or “prevented” him from exhausting the applicable administrative remedi es finds no support in the record. Instead, numerous defects—of his own doing—accompan ied many of his grievances. Whether it was failing to attach a properly completed affidavit with his grievances or submitting documents in an untimely fashion, we find th ese errors stem from Gray’s own failure to adhere to the requirements of the grievance pro cess. In fact, Gray knew how to navigate the process, as he properly exhausted Grievance 17-147, see id. at 97, and Grievance 17- 201, see id. at 265. Nor can we accept Gray’s a lternative argument—that the defendants instituted excessive procedural technicalities as a means to prevent him from exhausting the administrative remedies. That there are multipl e procedural steps Gray must comply with to properly exhaust the process do es not excuse an inmate’s failu re to abide by the rules. “Exhaustion gives an agency an opportunity to correct its ow n mistakes with respect to

4 We consider the merits of Gray’s proper ty claim in Section II of this decision.8 the programs it administers before it is haled into federal court.” Woodford , 548 U.S. at 89 (internal quotation mark s and citation omitted). Given these facts, the district court di d not err in finding that Gray failed to properly exhaust 16 of the 18 grievances he filed during the timeframe relevant for this

case. 5 And because no unexhausted clai m can be considered by a court, Thomas , 609 F.3d at 1117, Gray’s challenges to the claims associated with these 16 grievances must, out of necessity, also fail.
B. Failure to Protect Claim As Gray properly exhausted Grievances 17-147 and 17-201, we now consider his claim that defendants “failed to protect” him from harm inflicted by his cellmates, a violation of his Eighth Amendment rights. Re ply Br. at 12. He asserts that housing unit manager Tiffany Ade failed to properly classi fy him as a vulnerable inmate and thus neglected to place him in “an appropriate per se safe” livi ng arrangement. Id. at 13 (internal quotation marks omitted). The Eighth Amendment impos es a duty on prison officials to provide humane conditions of confinement—to include “reasonable measures to guarantee the safety of the inmates.” Farmer v. Brennan , 511 U.S. 825, 83 2 (1994) (internal quotation marks and citations omitted). “This duty includes ‘a duty to protect prisone rs from violence at the hands of other prisoners.’” Requena v. Roberts , 893 F.3d 1195, 1214 (10th Cir. 2018) (quoting Farmer , 511 U.S. at 833). For Gray to preva il, he must show that there has been

5 We consider the claims originating from th e properly exhausted Grievances 17-147 and 17-201 in the remainder of this decision.9 “deliberate indifference” to his safety needs. To establish “deliberate indifference,” Gray must show the alleged mistreatment was “ objectively” serious and that the defendants “subjectively” ignored his safety needs. Farmer , 511 U.S. at 829, 834. A claimant may satisfy the subjective prong of th is inquiry by establishing that “the official knows of and disregards an excessive risk to inmate health or safety,” which is to say “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837. As the district court found, the eviden ce does not support an inference that the defendants were deliberately indifferent. We need not a ddress the objective component of Gray’s claim, because his claim clearly fails on the subjective prong. Indeed, our review of the record shows that prison o fficials acted on Gray’s properly exhausted grievances. In Grievance 17-147, Gray complained about hi s cellmate, Ezekiel Davis, and requested to be separated from him. ROA Vol. III at 101. After an investigation into this matter by the hous ing unit manager, Ade, Gray was moved from his cell within days of submitting the grievance. Id. at 100. Further, Gray admits that before his initia l assignment with Davis, he apparently saw no issues. See id. at 102 (“If [I] knew Mr. Davis better I w ould have known better th an to accept him as a cellmate.”). And then in Grievance 17-201, Gray expressed fear of his cellmate Tony Martin. Id. at 266. On the very day officials recei ved this grievance, they granted Gray’s request to be moved. Id. at 265. Gray also claims he was imprope rly classified. Nonetheless, “[u]nsubstantiated allegati ons carry no probative weight in summary judgment10 proceedings.” Self v. Crum , 439 F.3d 1227, 1230 (10th Ci r. 2006) (internal quotation marks and citations omitted). And Gray’s assertion stands in conflict with the record. In a sworn affidavit, housing unit manager Ade revealed that upon initial transfer to DCF, Gray and Davis actually “a sked me that they be celled together.” ROA Vol. III at 306

– 07. Despite this request, Ade c onducted an initial classification review of these two inmates. The records “indicated that Mr. Gray was listed as both a victim and a predator.” Id. at 307. For that reason, Ad e sought to ensure Gray was not placed with another inmate identified as a potential predator. Because Davis was not classified as a “predator,” Ade obser ves she had no concerns with housing the two inmates together. Id. After about two weeks as cellmates, Gray filed an emergency grievance claiming “his life was in danger because of his cellmate, Ezekiel Davis.” Id. Despite no prior indications of danger and no signs of injury, Ade approved Gray’s move to another housing unit. Id. Once again, Ade worked to find a “suitable housing situation” for Gray, and he eventually accepted a new cellmate. Id. at 308. Before long, Gray fi led a grievance concerning his new cellmate. “[A]s soon as [she ] was alerted of [an] issue, ” Ade moved Gray to another cell on that very day. Id. We agree with the district court that Gray did not create a genuine issue of material fact as to whethe r the defendants knew about and failed to protect Gray from an excessive risk to his safety. The evidence indicates Gray was moved, almost immediately, and he was not forced to re main with allegedly abusive cellmates in11 both instances when he filed properly e xhausted grievances. Gray claims the defendants were deliberately indifferent to hi s safety, but the record counsels otherwise. 6
C. Personal Property Claim In Gray’s third argument, he claims th at during his move to the Fox Bravo unit within DCF, defendants Hatchm an and Wright separated him from his property before it could be fully secured. See Aplt. Br. at 3(k), Reply Br. at 6. In so doing, Gray claims the officials acted “without any due process” and that they ul timately lost or damaged his property. Aplt. Br. at 3(k)

– 3(l).
In Daniels v. Williams , the Supreme Court held “the Due Process Clause is simply not implicated by a negligent act of an official causing uninten ded loss of or injury to life, liberty, or property.” 474 U.S. 327, 328 (1986). Gray does not assert an intentional loss or destruction of his property. Instead, he essentially claims the defendants acted negligently. See, e.g. , ROA Vol. IV at 74 (“[T]hey denied his right and refused to allow Plaintiff Gray to pack his own personal pr operty, subsequently, it was not properly secured or stored.”). As such, we find hi s allegations fall short of supporting a due

6 Gray also briefly alleges that officials retaliated against him for submitting these grievances. See Aplt. Br. at 3b. But in an affidav it, Ade states that at times, Gray “refused to comply with housing assignments.” ROA Vo l. III at 308. As such, he received write-ups for this failure to move to an assigned cell. Though Gray perceived retaliatory intent behind this discipline, Ade states that “[n]one of the misconduct writeups were issued to him in retaliation for anything. Mr. Gray repeatedly refused to comply with direct orders associated with cell assignmen ts and cellmates. There are consequences for refusing orders and housing assignments.” Id. Accordingly, the district court properly disposed of this claim.12 process claim. 7 Finally, we note that the two persona l property claim forms at issue both indicate all of Gray’s items were returned. See ROA Vol. III at 299, 301. Gray even signed each form—acknowledging their return. Id. In short, we agree with the district court that the defendants are en titled to summary judgment as to this property deprivation claim.
III. For substantially the same reasons set fort h in the district court’s order issued on September 30, 2019, we AFFIRM the district court’s grant of summary judgment to the defendants. Gray is reminded that he is obligated to continue making partial payments until the entire fee is paid.

Entered for the Court

Allison H. Eid Circuit Judge

7 Even if the conduct had been intentional, there is no due pro cess violation if there is an adequate alternative state remedy, e.g. , a state law conversion claim, for the loss of property. See Hudson v. Palmer , 468 U.S. 517, 533 (19 84). Here, the Oklahoma Governmental Tort Claims Act provides a remedy for unlawful de privation of property and Gray has not explained why this remedy was unavailable or inadequate. See Dopp v. Loring , 245 F. Appx 842, 849 (10th Cir. 2007) (unpublished) (ackno wledging this same state post-deprivation remedy was available for an Oklahoma inmate raising similar property concerns).