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, this panel has determined 

unanimously that oral argument wouldn’t 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 isn’t binding 

precedent, except under the doctrines 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 Court
2 

failure to exhaust his available 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 (collectively, the defendants), alleging deliberate indifference 

under § 1983. The defendants moved to dismiss, arguing that Ryan failed to first 

exhaust his available administrative remedies. See § 1997e(a) (“No action shall be 

brought with respect to prison conditions under [§ 1983] . . . by a prisoner confined 

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

are available are exhausted.”). In support, the defendants provided affidavits 

indicating that Ryan failed to comply with CDCR’s grievance policies. See Brodheim 

v. Cry, 584 F.3d 1262, 1264–65 (9th Cir. 2009) (describing California’s “multi-tiered 

administrative scheme for inmate grievances”). The magistrate judge agreed that 

Ryan failed to exhaust all available administrative remedies and recommended 

granting the defendants’ motion.2

 

Ryan lodged several objections to the magistrate judge’s report and 

recommendation. Before ruling on them, the district court concluded that the 

 2

 The magistrate judge also recommended denying Ryan’s motion to transfer, 

and the district court ultimately adopted that recommendation. 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 issue 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 properly 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 Ryan’s objections, adopted the magistrate 

judge’s report and recommendation, and entered judgment for the defendants. Ryan 

appeals. 

II 

At the outset, Ryan suggests 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 magistrate judge’s September 6, 2016 order provided the parties 

with adequate notice of the conversion. And Ryan neither acknowledges the district 

court’s ruling on this point nor “explain[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 review the district court’s 

order granting summary judgment to the defendants de novo, resolving all factual 

disputes and drawing all reasonable inferences 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 argues that the district court erred in 

failing to accept as true his complaint’s assertion that he “exhausted all available 

remedies.” R. vol. 1, 30. But Ryan appears to be laboring under the misapprehension 

that the district court was proceeding under the standards that apply to a motion to 
4 

dismiss. Instead, because the 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 administrative remedies” 

with evidence of his own. Id. at 181; see also Self v. Crum, 439 F.3d 1227, 1230 

(10th Cir. 2006) (“Unsubstantiated 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 (10th Cir. 1978) (describing 

process by which district court may order prison officials to conduct investigation 

and prepare report so as “to enable the trial court to decide . . . preliminary issues 

including those of jurisdiction”). But Ryan doesn’t address the district court’s ruling 

that he waived this argument below by failing 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 magistrate judge’s order within 14 days; explaining that 

“[a] party may not assign as error a defect in the order not timely objected to”); 

Nixon, 784 F.3d at 1369 (affirming because appellant’s “opening brief contain[ed] 

nary a word to challenge the basis of” the district 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 Ryan. The magistrate judge referred to 

that report only in a footnote that discussed Ryan’s medical records. And the district 
5 

court didn’t address the report at all, other 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 burden of showing that 

prejudice resulted”).

Ryan next presents various factual allegations 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 relief”). The problem is that 

Ryan doesn’t point to any evidence in the 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”). Accordingly, 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 assistance 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 order to demonstrate violation of Sixth 

 3

 For similar reasons, we decline 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 “reasonable probability that, 

but for counsel’s unprofessional errors, the result of the proceeding would have been 

different”). But “as a civil litigant, [Ryan] has no Sixth Amendment right to counsel.” 

Johnson v. Johnson, 466 F.3d 1213, 1217 (10th Cir. 2006). Accordingly, this 

argument fails. 

* * * 

We affirm the district court’s order granting summary judgment to the 

defendants on Ryan’s § 1983 claims. As a final matter, we construe Ryan’s assertion 

that he had insufficient time to prepare his 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