UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ PAUL PEMBERTON, Plaintiff - Appellant,

v. ROBERT PATTON; JUSTIN JONES; DEBBIE L. MORTON; MARK KNUTSON; TIM WILKINSON; MR. GENTRY; MR. WILLIAMS; REBECCA A. ADAMS; C/O UNDERWOOD, Defendants - Appellees. No. 15-7059 (D.C. No. 6:14-CV -00511-JHP-SPS) (E.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before KELLY , GORSUCH , and MATHESON , Circuit Judges.

________________ _________________ Paul Pemberton, an Oklahoma state pr isoner proceeding pro se, appeals the district court’s dism issal of his 42 U.S.C. § 1983 action. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 21, 2016
Elisabeth A. Shumaker Clerk of Court- 2 - I. BACKGROUND Mr. Pemberton is incarcer ated at the Davis Correcti onal Facility (DCF), an Oklahoma state prison run by a private co mpany, the Corrections Corporation of America (CCA). In this lawsuit, he cl aimed defendants violat ed his constitutional rights by (1) duplicating, outside of his pres ence, legal documents he gave to them for photocopying, which provided an opportunity for prison o fficials to read them or give advance copies to opposing parties, in violation of his F ourth Amendment right to be free of unreasonable sear ches and seizures; (2) return ing grievances unanswered to frustrate (or “sabotage,” as he repeat edly alleged) his at tempts to exhaust administrative remedies and thereby faci litate a failure-to-exhaust defense, in violation of his First Amendment right of access to the courts and, in some instances, in retaliation for filing grievances; and (3) refusing to supply him with sufficient time and materials to prepare documents for filing in cases he was litigating or wanted to litigate, also in violation of his First Am endment right of access to the courts. The district court permitte d Mr. Pemberton to proceed in forma pauperis ( ifp ), which required the court to order the Un ited States Marshals Service or another person to serve process. See 28 U.S.C. § 1915(d); Fed. R. Ci v. P. 4(c)(3). The court appointed the Marshals Serv ice, and Mr. Pemberton comp leted nine forms (one for each defendant) requesting service of pr ocess on each defendant. The only address he provided was: “in care of the Governor of Oklahoma at the State Capitol.” A legal assistant at the Oklahoma Department of Co rrections (ODOC) accepted service for three of the defendants: ODOC Director Robert Patton; Debbie Morton, a former- 3 - manager of the ODOC Administrative Revi ew Authority; and Mark Knutson, the manager of the Administrative Review Au thority. Process was returned unexecuted on the other six defendants, five CCA employees at DC F (defendants Wilkinson, Gentry, Williams, Adams, and Underwood), and Justin Jones, the former ODOC Director. Mr. Pemberton then requested a court- appointed server, arguing the Marshals Service had failed in its dutie s. The court denied that re quest, explaining that it was Mr. Pemberton’s responsibility to provide the Marshals Servic e with the proper address for each defendant. Meanwhile, defendants Patton, Morton, an d Knutson filed a mo tion to dismiss, and later the district cour t ordered Mr. Pemberton to show cause why the action should not be dismissed for failure to serve the other six defendants within Fed. R. Civ. P. 4(m)’s ti me limit. Mr. Pemberton re sponded to the motion and the show-cause order, and the distri ct court dismissed the case. The court determined there was no evid ence that Mr. Pemberton provided the correct service information to the Marshals Service, so he ha d not shown good cause for the failure of service. Accordingly, the court dismissed the six unserved defendants from the action without prejudice. The court also ruled that, to the extent Mr. Pemberton brought official-capacity claims against the ODOC defendants (Patt on, Morton, Knutson, and, apparently, Jones, despite the lack of service on him) , those claims were against the State and- 4 - therefore barred by Eleventh Amendment i mmunity. The court further concluded that the claims against defendant Morton we re barred by the statute of limitations. 1 Finally, the court determined that the allegations ag ainst the served defendants—Patton, Morton, and Knutson—we re vague, conclusory, and failed to show that any of them personally participat ed in the alleged constitutional violations, as required for liability under § 1983. Fo r that reason, the c ourt considered the claims against them frivol ous, dismissed them from the action with prejudice, and dismissed the entire action as frivol ous under 28 U.S.C. § 1915(e)(2)(B). 2
Mr. Pemberton filed a motion to a lter or amend the judgment under Fed. R. Civ. P. 59(e). The district court denied that motion. Mr. Pemberton appeals.
II. DISCUSSION Mr. Pemberton’s presentation of his appellate issues is both repetitive and disjointed; parts of the same issue are repeated or scatte red across different sections of his opening brief. We th erefore will frame and addre ss his arguments in a manner we consider more conducive to analysis. Because Mr. Pemberton proceeds pro se, we construe his filings libera lly but do not act as his advo cate, and his pro se status

1 Although the court’s dismis sal order is unclear as to whether the court meant to dismiss the cl aims against Ms. Mort on on limitations grounds , the court clarified in its order denying Mr. Pemberton’s post-j udgment motion that it had intended to do so. 2 The district court counted its dismis sal as a strike ag ainst Mr. Pemberton pursuant to 28 U.S.C. § 1915(g). Con cerned that Mr. Pemberton may have accumulated three strikes and was th erefore ineligib le to proceed ifp on appeal absent a showing of imminent danger of serious physical injury, we ordered him to address the three-strikes issue. He di d so but eventually paid his fi ling fee in full. Therefore, the three-strikes issue, which was referred to our panel, is moot.- 5 - does not excuse him from comp lying with fundamental pr ocedural requirements in either the district c ourt or this court. Yang v. Archuleta , 525 F.3d 925, 927 n.1 (10th Cir. 2008). A. Dismissal for failur e to serve process We first consider whether the district court erred in dismissing the claims against the six unserved defendant s for failure to timely serv e process. Our review is for abuse of discretion. Jones v. Frank , 973 F.2d 872, 872 (10th Cir. 1992). Mr. Pemberton argues that because he was authorized to proceed ifp , the Marshals Service was required to find and serve all defe ndants, and his instru ctions that service was to be made in care of Oklahoma’s gover nor, as the state’s chie f executive officer, were proper under Fed. R. Civ. P. 4(j)(2)(A). We agree with the general principle that the Marshals Service was required to carry out service; indeed, Rule 4(c)(3) and 28 U.S.C. § 1915(d) say as much. And we have recognized “that good cause exists to ex cuse a plaintiff’s fa ilure to serve where the plaintiff is proceeding [ ifp ] and is therefore entitled to rely on service by the U.S. Marshal,” at least where “there is no evidence in th e record that [p]l aintiff[] failed to cooperate with the U.S. Mars hals or [was] otherwise not entitled to their service.” Olsen v. Mapes , 333 F.3d 1199, 1204-05 (10th Cir. 200 3). But the Marshals Service is not responsible for lack of service where a plaintiff does not provide correct information required for service. See Johnson v. U.S. Postal Serv. , 861 F.2d 1475, 1479-80 (10th Cir. 1988) (concluding the Marshal’s Service wa s not culpable for failure to effect service in an ifp case where the plain tiff had named the wrong- 6 - defendant); Oltremari ex rel. McDaniel v. Kan. Soc. & Rehab. Serv. , 871 F. Supp. 1331, 1352 (D. Kan. 1994) (dismissal of ifp case for Marshals Service’s failure to effect service is improper unless the service defect “res ult[s] from inadequate or inaccurate information presente d by plaintiff or on a lack of diligence on the part of plaintiff”); cf. Fields v. Okla. State Penitentiary , 511 F.3d 1109, 1113 (10th Cir. 2007) (“[T]he Marshal is not charged with finding a defendant who has moved without providing an accessib le forwarding address.”). Here, in attempting to provide a proper service address, Mr. Pemberton relied on Rule 4(j)(2)(A). That re liance was mistaken. The rule provides: “A state, a municipal corporation, or a ny other state-created governm ental organization that is subject to suit must be served by . . . de livering a copy of the summons and of the complaint to its ch ief executive officer.” Fe d. R. Civ. P. 4(j)(2)(A). By its terms, the rule applies only when a plaintiff sues a state governmental organization, but Mr. Pemberton sued only individuals. Acco rdingly, the rule is inapplicable. And contrary to Mr. Pemberton’s contention, Brown v. Fisher , 251 F. App’x 527, 530 n.4 (10th Cir. 2007), did not hold that service on an OD OC employee is properly effectuated by serving a state’s chief executi ve officer. That case instead merely reiterated the proper method of serving a state, municipal cor poration, or other state-created governmental orga nization under Rule 4(j)(2). Mr. Pemberton points out that he pr ovided the Governor’s telephone number on the service forms he completed and argues the Marshals Servi ce should have used the number to inquire of each defendant’s location. Mr. Pemberton also relies on a- 7 - Seventh Circuit decision, Sellers v. United States , 902 F.2d 598, 602 (7th Cir. 1990), indicating that once a prisoner furnishes the Marshals Service with information sufficient to identify a former employee (such as defendant Jones in this case), the Marshals Service should be ab le to learn of the former employee’s address and effect service. 3 We reject these arguments gi ven the views expressed in Johnson , Oltremari , and Fields , discussed above. Moreover, the Sellers court was concerned that due to safety concerns, an indigent prisoner mi ght not be able to obtain a correctional employee’s home address or, in the case of a former em ployee, his current business address. Id. Mr. Pemberton made no showing th at he even inquired about obtaining such addresses let alone that such a request was rejected , nor did he request personal service on any defendants who then worked at DCF, a facility whose address he knew or should have known. He in stead continued to rely (mis takenly, as it turns out) on Rule 4(j)(2)(A). We declin e to fault the Marshals Serv ice in these circumstances. In sum, we cannot say the district court abused its discretion when it determined that Mr. Pemberton was respon sible for providing the correct service address for the individual defenda nts, that he failed to do so , that he failed to show cause for failing to do so, and that the cl aims against the six unserved defendants should be dismissed without prejudice.

3 Mr. Pemberton’s reliance on Byrd v. Stone , 94 F.3d 217, 219-20 (6th Cir. 1996), is misplaced because there the plaintiff had provi ded an appropriate address for the defendant to be served but the c ourt clerk never issued summonses and never appointed the Marshals Serv ice to carry out service.- 8 - B. Dismissal of official-capacity claims against ODOC defendants Mr. Pemberton takes issue with the district court’s dismissal of his official-capacity claims for damages against ODOC de fendants Patton, Morton, Knutson, and (apparently) Jones on the basi s of Eleventh Amendm ent immunity. He argues the district court misread his comp laint as seeking da mages against these defendants in their official capacities whereas he sought damages against them in their individual capacities, a nd the Eleventh Amendment doe s not bar such claims. This argument reflects a mi sunderstanding of the distri ct court’s ruling. The court did not dismiss any individual-capac ity claims for dama ges against the ODOC defendants based on Eleventh Amendment imm unity but ruled only that to the extent Mr. Pemberton brought any official-capacit y damages claims ag ainst them (and he did state that his claims against Director Patton and Mr. Knutson were in both their official and individual capacities, see R. at 15-16), they were barred by Eleventh Amendment immunity. The error Mr. Pemb erton identifies simp ly does not exist. C. Dismissal of individual-capacity claims against defendant Morton Mr. Pemberton’s claims against Ms. Morton arise from her handling of a grievance appeal in September 2012, when she was manager of the Administrative Review Authority. He alleged that in July 2012, he gave documen ts he had prepared for litigation to a DCF library supervisor, Ms. Farris, fo r photocopying. Ms. Farris kept the documents for three days a nd made the requested copies outside Mr. Pemberton’s presence, which he claims afforded prison offici als an opportunity to read the documents and ma ke copies for advance distri bution to potential litigation- 9 - opponents. He filed a grievance that DCF’s grievance c oordinator (unserved defendant Rebecca Adams) rejected and retu rned to him unanswered, noting he was “on grievance restriction, proper docum entation not included.” R. at 102. Mr. Pemberton then appealed to Ms. Morton, who returned the appeal because he had repeatedly submitted “gri evances incorrectly and no t according to policy.” Id. at 109. She also placed him on a gr ievance restriction extension. Mr. Pemberton asserted that Ms. Morton violated his Fourth Amendment right to be free of illegal search es by acquiescing in or condoning the practice of making photocopies of litigation documents outside a prisoner’s presence. He also asserted that by returning his grievance appeal unanswered and placi ng him on grievance restriction extension, Ms. Morton violated his First Am endment right to access the courts because those acts we re designed to frustrate hi s ability to exhaust his administrative remedies and thereby facilita te failure-to-exhaust defenses in future legal actions. He further alleged Ms. Morton had retalia ted against him for filing grievances. We need not address Mr. Pemberton’ s argument that the district court misconstrued his allegations regarding Ms . Morton when the court determined she did not have the requisite personal participati on. Instead, we affi rm the dismissal of the claims against Ms. Morton on the ground that the statut e of limitations had run. Our review of the limitati ons issue is de novo. Braxton v. Zavaras , 614 F.3d 1156, 1159 (10th Cir. 2010).- 10 - Oklahoma’s two-year statute of limi tations applies to § 1983 claims. Beck v. City of Muskogee Police Dep’t , 195 F.3d 553, 557 (1 0th Cir. 1999). The complained-of conduct occu rred in September 2012, and Mr. Pemberton does not argue that (nor do we see a ny reason why) his claim accrue d any later. He did not file his action until November 2014, more than two years la ter. His claims against Ms. Morton are therefore time-barred unless the limitations peri od can be tolled. As he did in the district court, Mr . Pemberton argues the limitations period should be tolled because the grievance pro cess he initiated in July 2012 was not completed until March 2014, and the Pris on Litigation Reform Act, 42 U.S.C. § 1997e(a), tolls the limitati ons period in such circumstan ces. The district court disagreed, and so do we. 4 Nothing in § 1997e(a) refers to tolling. 5 And in Roberts v.
Barreras , we recognized that “in a § 1983 suit, state tolling rules, not federal ones, apply . . . [to] both . . . determining whether the fili ng of mandatory grievances requires tolling at all, and, if so, how that tolling is to be calculated.” 484 F.3d 1236,

4 We typically review the refusal to apply equitable tolling for abuse of discretion, Braxton , 614 F.3d at 1159, but here the to lling issue is a legal one, so our review remains de novo.

5 Section 1997e(a) provides: “No action shall be br ought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. ” Mr. Pemberton contends that in Laubach v. Scibana , 301 F. App’x 832 (10th Cir. 2008), we held that tolling applies to all claims while a prisoner seek s to exhaust administ rative remedies. We reached no such holding but instead assu med that under Okla homa law, tolling applied during exhaustion a nd concluded that the plai ntiff’s claims were still time-barred. Id. at 837.- 11 - 1241 (10th Cir. 2007). We then examined New Mexico’s stat utory and equitable tolling provisions. Id. at 1241-44. Here, we must look to Oklahoma law, 6 which allows equitable tolling (1) when a plaintiff is under a “legal disability” due to impaired competency or minority, (2) “when defendants engage in false, fraudulent or misl eading conduct calculated to lull plaintiffs into sitti ng on their rights,” and (3) in cases of “exceptional circumstances.” Young v. Davis , 554 F.3d 1254, 1258 ( 10th Cir. 2009) (internal quotation marks omitted). Mr. Pembert on does not contend any of these three circumstances exists here; in fact, he concedes that “Oklahoma has no tolling for state limitations periods for prisoner exha ustion.” Aplt. Openi ng Br. at 22. He instead relies—improperly, as we have e xplained—on § 1997e(a ). Furthermore, nothing prevented Mr. Pemberton from fili ng suit and then contesting any exhaustion defense under the principle announced in Little v. Jones : “Where prison officials prevent, thwart, or hinder a prisoner’s effort s to avail himself of an administrative remedy, they render that remedy ‘unavailabl e’ and a court will excuse the prisoner’s failure to exhaust.” 607 F.3d 1245, 1250 (10th Cir. 2010).
D. Dismissal of individual-capacity claims against defendants Knutson and Patton Claims four and five of his complaint attempt to as sert supervisory liability against defendants Knutson and Patton. To do so, Mr. Pemberton first asserted that two of the unserved CCA defendants (Chi ef of Unit Management Mr. Gentry, who

6 For this reason, Mr. Pemberton misp laces reliance on cases concerning the tolling laws of other states.- 12 - supervised each DCF unit, including the law lib rary, and Warden Wilkinson) failed to provide him with adequate ti me and materials to prepar e litigation documents, in violation of Mr. Pemberton’s right of acce ss to the court. The deprivation of materials included legal-research books, wh ite paper, envelopes, photocopies, black ink pens (which he claims are necessary for fi lings in the United States Supreme Court), and, for a period of approximately four months, pens of any color ink. Mr. Pemberton further alleged that Mr. Knutson, who had succeeded Ms. Morton as manager of the Administrative Review Authority, violated his right of access to the courts by failing to co rrect the underlying deprivation after Mr. Pemberton brought it to his attention through a grievance appeal (Mr. Knutson returned the appeal because “the issues in the grie vance [did] not match the referenced request to staff,” R. at 144 (boldface and capita lization omitted)). He also asserted that by returning the grievance ap peal unanswered, Mr. Knutson intended to frustrate his access to th e courts by facilitating a failure-to-exhaust defense. 7 Mr. Pemberton finally alleged that Director Patton was liable fo r the deprivation of ink pens.

7 In the third claim in hi s complaint, Mr. Pemberton appeared to assert that Mr. Knutson violated his court-access right in another way—by re turning a different grievance appeal to Mr. Pemberton without resolution so as to thwart his completion of the grievance process. See R. at 48-51. But in his opening appellate brief, Mr. Pemberton’s discussion of claim thr ee is limited to the acts of unserved defendant Underwood and Ms. Morton. See Aplt. Opening Br. at 24. Accordingly, Mr. Pemberton has forfeited a ppellate review of the dismis sal of claim three to the extent the claim was dir ected at Mr. Knutson. Bronson v. Swensen , 500 F.3d 1099, 1104 (10th Cir. 2007). But even if he ha d not forfeited review, the claim as to Mr. Knutson would fail for the same reasons we are about to discuss.- 13 - The district court concluded that Mr. Pemberton failed to adequately allege personal participation by either Mr. Knut son or Director Patton and, as noted, dismissed the claims against them with pr ejudice. We review that determination de novo, accepting the well-pleaded factual al legations as true an d construing them in the light most favorable to the plaintiff. Thomas v. Kaven , 765 F.3d 1183, 1190 (10th Cir. 2014). In doing so , we “ask whether it is plausi ble that [Mr. Pemberton] is entitled to relief.” Gallagher v. Shelton , 587 F.3d 1063, 1068 (10th Cir. 2009). To that end, a complaint must “c ontain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (internal quotation mark s omitted). “A claim has f acial plausibili ty when the plaintiff pleads factual conten t that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a probability require ment, but it asks fo r more than a sheer possibility that a defendant has acted unlawfully.” Id. (internal quotation marks omitted). In § 1983 cases, a plaintiff must adequa tely allege each defendant’s personal participation in a cons titutional violation. See id. at 676 (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plai ntiff must plead that each Government-official defendant , through the official’s own individual actions, has violated the Constitution.”). Mr. Pembert on sued Mr. Knutson and Director Patton- 14 - primarily 8 on the theory that each had superv isory authority over Mr. Gentry and Warden Wilkinson, but supervisory status alone is not enoug h to show personal participation. Dodds v. Richardson , 614 F.3d 1185, 1195 (10th Cir. 2010). Rather, Mr. Pemberton “must show an ‘affirma tive link’ between [t hese supervisory defendants] and the constituti onal violation,” which require s plausible allegations of “(1) personal involvement; (2) caus ation[;] and (3) state of mind.” Schneider v. City of Grand Junction Police Dep’t , 717 F.3d 760, 767 (1 0th Cir. 2013) (quoting Dodds , 614 F.3d at 1195). We will first discuss Mr. Pemberton’s ef forts to establish Director Patton’s personal participation and then turn to his allegations con cerning Mr. Knutson. 1. Director Patton Mr. Pemberton alleged that Director Patton was affirmatively linked to the deprivation of black ink pens for a period of almost two years (and pens of any color ink for just over four months) by virtue of Oklahoma statutes de fining his duties as ODOC Director and authorizing the use of private prison contractors. 9 Mr. Pemberton argues that this is sufficient under Dodds because, as the head of the ODOC, Director Patton knew, or should ha ve known, that the deprivation was a policy or custom at DCF and he did nothing to stop it.

8 As we discuss below, Mr. Pemberton’ s allegation that Mr. Knutson’s return of his grievance appeal unanswered doe s not involve supervisory liability.

9 The specific statutes Mr. Pemberton cite d are Okla. Stat. ti t. 57, §§ 507, 508, 510, 561, 561.1, and 563.2. See R. at 71.- 15 - We disagree with Mr. Pemberton’s reliance on Dodds . Where, as here, a plaintiff seeks to hold a supervisor accountable for a polic y that causes the deprivation of a constitutional right, he must plausibly alle ge “more than ‘a supervisor’s mere kno wledge of his subordinate’s’ conduct.” Schneider , 717 F.3d at 767 (quoting Iqbal , 556 U.S. at 677). His allegatio ns must plausibly show “the defendant promulgated, crea ted, implemented or posse ssed responsibility for the continued operation of [the] policy.” Dodds , 614 F.3d at 1199. The sheriff in Dodds was potentially liable because he “may have played more than a passive role in the alleged constitutional viola tion—he may have deliberat ely enforced or actively maintained the policies in question at the jail.” Id. at 1204 (emphasis added). Mr. Pemberton did not provide any fact ual allegations plausibly suggesting Director Patton was personally involved in promulgating, creating, or implementing any policies DCF staff may have used regard ing failure to provide black-ink pens or pens of any color. 10 Nor did Mr. Pemberton plausibly allege that Director Patton was even aware of the alleged denial of pens such that he could be said to have deliberately enforced, actively maintained, or, for th at matter, acqui esced in the policy. See id. at 1195 (stating that even before Iqbal , which imposes a more demanding standard for plead ing a viable § 1983 claim, see id. at 1199, a plaintiff

10 Although an informal policy or custom can form the basis for a supervisor’s liability, see Dodds , 614 F.3d at 1209 (Tymkovich, J. , concurring) (explaining that a policy “need not be explicitly codified” to form the basis for mu nicipal liability), we note that ODOC’s current, formal policy is that each prison’s la w library will provide “appropriate writing utensils,” ODOC Poli cy and Operations Manual, Access to Courts/Law Libraries, OP-030115, § IV.A.2. (effective Jan. 7, 2015).- 16 - could show a supervisor’s “personal invol vement . . . by demonstrating his . . . knowledge of the violation and acquiescence in its c ontinuance” (emphasis added) (brackets and internal quotation marks omitted)). Furthermore, Mr. Pemberton’s allega tions do not plausibly establish the required “causal connection” by showing Director Patton “s et in motion a series of events that [he] knew or reasonably s hould have known woul d cause others to deprive” Mr. Pemberton of access to certain pens. Id. at 1195-96 (internal quotation marks omitted). At most, Mr. Pemberton’s allegations show that , unlike the sheriff in Dodds , Director Patton played no more than a passive role despite being similarly charged under state law with supervis ory responsibility over the entire ODOC. Mr. Pemberton’s “bare asse rtions” that Oklahoma law rendered Director Patton “responsible for” policies prohi biting either black ink pens or any pens at all “amount to nothing more than a form ulaic recitation of the elemen ts of a constitutional . . . claim.” Iqbal , 556 U.S. at 681 (internal quotati on marks omitted). “Where a complaint pleads fact s that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plau sibility of entitleme nt to relief.” Id. at 678 (internal quotation marks omitted). 2. Mr. Knutson Mr. Pemberton alleged that Mr. Knut son was affirmatively linked to the underlying deprivation of time and mate rials by his review of Mr. Pemberton’s grievance appeal. We have said the “den ial of a grievance, by itself without any connection to the violation of constituti onal rights alleged by plaintiff, does not- 17 - establish personal partic ipation under § 1983.” Gallagher , 587 F.3d at 1069. Mr. Pemberton attempts to distinguis h Mr. Knutson’s conduct from this rule, pointing out that Mr. Knutson did not deny his grievance but instead returned it to him unanswered. This distin ction is insufficient becaus e there remains no affirmative link between the underlying c onduct and Mr. Knutson. Mr. Knutson personally participated in returning the grievance appeal unanswered. But we cannot agree this states a claim that Mr. Knutson violated Mr. Pemberton’s right of access to the cour ts. Even if we cr edit Mr. Pemberton’s theory that returning his grievance appeal without a substantiv e answer was designed to facilitate a failure-to-exhaust defense, lack of exhaustion has not prevented his claims from proceeding in this case. A lthough Mr. Knutson argued to the district court that the claims against him could be dismissed for failu re to exhaust, the district court did not base dismissal on that grou nd, and Mr. Knutson ha s made no exhaustion argument on appeal. Accordingl y, the failure to answer his grievance has caused him no injury. Moreover, if necessary, Mr. Pe mberton could have s ought to be excused from exhausting by showing that Mr. Knutson prevented, thwarted, or hindered his efforts to exhaust, which, if prove n, renders exhausti on “unavailable.” Little , 607 F.3d at 1250 (internal quotation marks omitted). Mr. Pemberton also alleged (and argues on appeal) that the affirmative link can be found in Mr. Knutson’s failure to re medy the lack of time and materials to prepare court filings, which he likens to the sort of failu re to act and condonation we said was sufficient to show personal participation in Dodds . We again disagree with- 18 - his reliance on Dodds . In Dodds , we concluded that the sher iff could be held liable under § 1983 for deliberately enforcing or actively maintaining an unconstitutional bail policy over which he had res ponsibility under Oklahoma law. See Dodds , 614 F.3d at 1203-04. Here, Mr . Pemberton has not alleged that Mr. Knutson, whose job was to review grievance appeals, had a similar responsibility over any policy or informal custom to deprive prisoners of ad equate time and materials to prepare court filings.
E. Dismissal with prejudice Mr. Pemberton complains that the dist rict court erred in dismissing with prejudice his claims against defendants Patton, Morton, and Knutson without considering the factors outlined in Ehrenhaus v. Reynolds , 965 F.2d 916 (10th Cir. 1992). But the Ehrenhaus factors come into play when a district court contemplates dismissing an action with prejudice as a sanction. See id. at 920-21 (outlining factors to consider “[b]efore choosi ng dismissal as a just sancti on” for discovery violation); see also, e.g. , Nasious v. Two Unknown B.I.C.E. Agents , 492 F.3d 1158, 1162-64 (10th Cir. 2007) (faulti ng district court for failing to consider Ehrenhaus factors before dismissing with prejudice under Fed. R. Civ. P. 41(b) for failing to comply with Fed. R. Civ. P. 8). The district court dismissed the cl aims against Patton, Morton, and Knutson with prejudice because th e claims were legally insufficient and, in the case of Morton, also because the stat ute of limitations had run. The district court was not required to consider the Ehrenhaus factors before doing so.- 19 - Mr. Pemberton observes that “ordinarily the dismissal of a pro se claim under Rule 12(b)(6) should be without prejudice,” Gee v. Pacheco , 627 F.3d 1178, 1186 (10th Cir. 2010), and a Rule 12(b)(6) dism issal is not appropr iate unless “it is obvious that the plaintiff ca nnot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend,” Oxendine v. Kaplan , 241 F.3d 1272, 1275 (10th Cir. 2001) (inter nal quotation marks omitte d). The district court addressed this in its order denying Mr. Pemberton’s Rule 59( e) motion, observing that Mr. Pemberton had an opportunity to move to amend his complaint after the served defendants filed their motion to dism iss, and “the court was not required to invite” him to do so. R. at 444. We see no error in the dismissal with prejudice of the claims against defendants Patton, Morton, and Knutson.
F. Motion to strike insuffici ent affirmative defenses Mr. Pemberton filed a mo tion to strike the served defendants’ affirmative defenses as insufficient. The district court did not mention that motion in its dismissal order but did consider it wh en Mr. Pemberton brought it up in his Rule 59(e) motion. The court observed that Mr. Pemberton sought to strike a multitude of statements in the motion to dismiss that contradicted the factual allegations of his complaint. The court concluded the motion ha d no merit, reasoning that “defendants’ contradiction of plaintiff’ s complaint . . . is part of the litigation process, and plaintiff pres ented his arguments in his response to the motion to dismiss.” R. at 448. We se e no basis for reversing the dist rict court’s decision as we have independently reviewed and cons idered Mr. Pemberton’s allegations.- 20 - III. CONCLUSION The judgment of the dist rict court is affirmed.
ENTERED FOR THE COURT,

Scott M. Matheson, Jr. Circuit Judge