UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ PATRICK RYAN, Plaintiff - Appellant,

v. CORRECTIONS CORPORATION OF AMERICA; CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION; KEITH IVENS, Defendants - Appellees. No. 17-6057 (D.C. No. 5:16- CV-00205-R) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , O’BRIEN , and MORITZ , Circuit Judges.

________________ _________________ Proceeding pro se, 1 California prisoner Patrick Ryan appeals the district court’s order disposing of his 42 U.S.C. § 1983 claims based on Ryan’s alleged

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument wouldn’t mate rially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Ci r. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment isn’t binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 1 We liberally construe pro se filings. But we won’t act as an advocate for pro se litigants. Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10th Cir. 2005). FILED United States Court of Appeals Tenth Circuit 

### November 2, 2017
Elisabeth A. Shumaker Clerk of Court2 failure to exhaust his availa ble administrative remedies. See id. § 1997e(a). We affirm.
I Ryan brought suit against Corrections Corporation of America (CCA), the California Department of Corrections and Rehabilitation (CDCR), and CCA employee Keith Ivens (collec tively, the defendants), alle ging deliberate indifference under § 1983. The defendants moved to dism iss, arguing that Ryan failed to first exhaust his available ad ministrative remedies. See § 1997e(a) (“No action shall be brought with respect to pris on conditions under [§ 1983] . . . by a prisoner confined in any jail, prison, or othe r correctional facility until such administ rative remedies as are available are exhauste d.”). In support, the defe ndants provided affidavits indicating that Ryan failed to comp ly with CDCR’s grievance policies. See Brodheim v. Cry , 584 F.3d 1262, 1264–65 (9th Cir. 2009) (describing Ca lifornia’s “multi-tiered administrative scheme for inmate grievanc es”). The magistrate judge agreed that Ryan failed to exhaust all available ad ministrative remedi es and recommended granting the defendants’ motion. 2 Ryan lodged several objections to the magistrate judge’s report and recommendation. Before ruling on them, th e district court concluded that the

2 The magistrate judge also recommende d denying Ryan’s motion to transfer, and the district court ultimat ely adopted that recommendati on. In a single sentence in his opening brief, Ryan asks us to reverse that portion of the district court’s order. But he provides no argument as to why we should do so. Because “such perfunctory complaints fail to frame and develop an is sue sufficient to invoke appellate review,” we decline to address this issue. Murrell v. Shalala , 43 F.3d 1388, 1389 n.2 (10th Cir. 1994).3 magistrate judge had properl y converted the defendants’ motion to dismiss into a motion for summary judgment. See Brown v. Zavaras , 63 F.3d 967, 969 (10th Cir. 1995). The district court then overruled Ry an’s objections, adopted the magistrate judge’s report and recommendation, and ente red judgment for the defendants. Ryan appeals.
II At the outset, Ryan suggest s that the magistrate judge impermissibly converted the defendants’ motion to dismiss into a motion for summary judgment without notifying him first. See Fed. R. Civ. P. 56(f). But the district court expressly concluded that the magistra te judge’s September 6, 2016 order provided the parties with adequate notice of th e conversion. And Ryan neither acknowledges the district court’s ruling on this point nor “expl ain[s] to us why [it] was wrong.” Nixon v. City & Cty. of Denver , 784 F.3d 1364, 1366 (10th Cir. 2015). Thus, we assume the magistrate judge provided Ryan with sufficient notice and re view the district court’s order granting summary judgment to the de fendants de novo, resolving all factual disputes and drawing all reasonable inferen ces in Ryan’s favor. See Argo v. Blue Cross & Blue Shield of Kan., Inc. , 452 F.3d 1193, 1199 (10th Cir. 2006); Fitzgerald v. Corr. Corp. of Am. , 403 F.3d 1134, 1138 (10th Cir. 2005). In challenging that order, Ryan first ar gues that the district court erred in failing to accept as true hi s complaint’s assertion that he “exhausted all available remedies.” R. vol. 1, 30. But Ryan appear s to be laboring under the misapprehension that the district court was proceeding under the standards that apply to a motion to4 dismiss. Instead, because th e magistrate judge converted the defendants’ motion to one for summary judgment, the district court correctly noted that Ryan was “required to rebut [the defendants’] evidence that he failed to exhaust ad ministrative remedies” with evidence of his own. Id. at 181; see also Self v. Crum , 439 F.3d 1227, 1230 (10th Cir. 2006) (“Unsubsta ntiated allegations carry no probative weight in summary judgment proceedings.” (quoting Phillips v. Calhoun , 956 F.2d 949, 951 n.3 (10th Cir. 1992))). Accordingly, the district court didn’t err in declining to accept as true the unsupported allegations in Ryan’s complaint. Next, Ryan argues that the district court erred in relying on the Martinez report. See Martinez v. Aaron , 570 F.2d 317, 318–19 (10t h Cir. 1978) (describing process by which district c ourt may order prison official s to conduct investigation and prepare report so as “to en able the trial court to deci de . . . preliminary issues including those of jurisdiction”). But Ryan doesn’t address the district court’s ruling that he waived this argument below by fa iling to timely object when the magistrate judge initially directed the defendants to prepare the report. See Fed. R. Civ. P. 72(a) (requiring party to object to ma gistrate judge’s order with in 14 days; explaining that “[a] party may not assign as error a defect in the orde r not timely objected to”);
Nixon , 784 F.3d at 1369 (affirming because appe llant’s “opening brief contain[ed] nary a word to challenge the basis of” the di strict court’s decision). And in any event, we see no indication that either the magistrate judge or the district court relied on the Martinez report in a manner that prejudiced Ry an. The magistrate judge referred to that report only in a footnote that discusse d Ryan’s medical record s. And the district5 court didn’t address the report at all, ot her than to say that Ryan waived any challenge to it. Thus, any error— assuming one occurred—was harmless. See Palmer v. Hoffman , 318 U.S. 109, 116 (1943) (explaining that litigant “who seeks to have a judgment set aside because of an erroneous ruling carries the burde n of showing that prejudice resulted”). Ryan next presents various factual alle gations that, if true , might conceivably support an argument that any administrative remedies he failed to exhaust weren’t “available” to him. § 1997e; see also Ross v. Blake , 136 S. Ct. 1850, 1859–60 (2016) (listing “three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain re lief”). The problem is that Ryan doesn’t point to any evidence in th e record that might support these factual allegations. See Fed. R. App. P. 28(a)(8)(A) (requiring argument section of appellant’s opening brief to contain “citations to the . . . parts of the record on which the appellant relies”). Acco rdingly, they don’t provide a basis for reversing the district court’s judgment. 3 See id. ; Self , 439 F.3d at 1230. Finally, Ryan suggests that he received ineffective assistan ce of counsel; he cites Strickland v. Washington , 466 U.S. 668 (1984), and argues that “if counsel had performed adequately, the result would have been different.” Aplt. Br. 10; see also Strickland , 466 U.S. at 694 (holding that in orde r to demonstrate vi olation of Sixth

3 For similar reasons, we d ecline to address Ryan’s assertion that he “was denied timely and complete access to his C[ entral] File,” Aplt. Br . 10; Ryan fails to provide a record citation that might support this statement, see Fed. R. App. P. 28(a)(8)(A).6 Amendment right to counsel, defendant must establish “r easonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”). But “as a civil lit igant, [Ryan] has no Sixth Am endment right to counsel.” Johnson v. Johnson , 466 F.3d 1213, 1217 (10th Cir. 2006). Accordingly, this argument fails.
* * * We affirm the district court’s or der granting summary judgment to the defendants on Ryan’s § 1983 clai ms. As a final matter, we construe Ryan’s assertion that he had insufficient time to prepare hi s opening brief as a motion for an extension of time and deny that motion as moot.

Entered for the Court
Nancy L. Moritz Circuit Judge