UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

ALEXANDRE Z. DAVIS, 

 Plaintiff - Appellant, 

v. 

BIG HORN COUNTY JAIL; BIG HORN 

COUNTY JAIL CAPTAIN, 

 Defendants - Appellees. 

No. 23-8089 

(D.C. No. 1:23-CV-00116-SWS) 

(D. Wyo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before PHILLIPS, BRISCOE, and CARSON, Circuit Judges. 

_________________________________ 

 Plaintiff Alexandre Z. Davis, a federal prisoner proceeding pro se, appeals the 

district court’s judgment rejecting his 42 U.S.C. § 1983 claim. Exercising jurisdiction 

under 28 U.S.C. § 1291, we affirm. We also deny his motion to proceed in forma 

pauperis. 

* After examining the briefs and appellate record, this panel 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 law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 22, 2024

Christopher M. Wolpert 

Clerk of Court

Appellate Case: 23-8089 Document: 010111098748 Date Filed: 08/22/2024 Page: 1
2 

I.

 The United States Marshals Service housed Plaintiff at the Big Horn County Jail 

(“BHCJ”) pursuant to an agreement. Plaintiff shared a cell with Drew Seymour. 

Seymour threatened Plaintiff daily because Plaintiff registered as a sex offender. In April 

2023, Seymour attacked Plaintiff and broke his jaw. Plaintiff received medical attention 

for his injuries but requires additional dental work. Plaintiff filed this action and alleged 

the BHCJ and Captain Debbie Cook failed to protect him in violation of his Eighth and 

Fourteenth Amendment rights. 

Defendants asserted failure to exhaust as an affirmative defense to his claims. The 

BHCJ provides grievance procedures for inmates, requiring inmates to submit an inmate 

request form. Under this procedure, either the sergeant, lieutenant, or captain reviews an 

inmate’s initial complaint and renders a decision. The inmate may appeal the decision to 

the sergeant who decides the appeal. The inmate may then appeal the sergeant’s decision 

to the captain, who reviews it and makes a final decision. During his incarceration at 

BHCJ, officers supplied Plaintiff with a copy of the inmate rules and handbook, which 

contains the details of the BHCJ’s grievance procedures. 

Although Plaintiff filed seven inmate request forms under the grievance 

procedures, Plaintiff never requested to move to another pod or mentioned any conflicts 

with other inmates. For example, Plaintiff requested a change of cell on April 5, 2023, 

but he did not mention a conflict with another inmate. Plaintiff and Defendants crossmoved for summary judgment. The district court denied Plaintiff’s motion for summary 

Appellate Case: 23-8089 Document: 010111098748 Date Filed: 08/22/2024 Page: 2
3 

judgment and granted Defendants’ motion for summary judgment, finding that Plaintiff 

failed to exhaust available administrative remedies. Plaintiff appeals. 

II.

We review de novo a district court’s decision to grant summary judgment. Rivero 

v. Bd. of Regents of Univ. of N.M., 950 F.3d 754, 758 (10th Cir. 2020) (quoting Lauck v. 

Campbell Cnty., 627 F.3d 805, 809 (10th Cir. 2010)). We affirm the district court’s grant 

of summary judgment if the movant establishes no genuine issues of material fact exist 

and the movant is entitled to judgment as a matter law. Id. (quoting Fed. R. Civ. P. 

56(a)). We review de novo the district court’s finding of failure to exhaust administrative 

remedies. Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (citing Miller v. 

Menghini, 213 F.3d 1244, 1246 (10th Cir. 2000)). 

Under the Prison Litigation Reform Act of 1996 (“PLRA”), a prisoner must 

exhaust all available administrative remedies before filing an action under 42 U.S.C. 

§ 1983. Porter v. Nussle, 534 U.S. 516, 524 (2002) (quoting 42 U.S.C. § 1997e(a) (1994 

ed., Supp. V)). Proper exhaustion requires a plaintiff to comply with each of a prison’s 

administrative procedures, including deadlines and procedural rules. Woodford v. Ngo, 

548 U.S. 81, 90–91 (2006). “Substantial compliance is insufficient.” Fields v. Oklahoma 

State Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007) (citing Jernigan, 304 F.3d at 

1032). A defendant has the burden of asserting the affirmative defense of failure to 

exhaust and proving that the plaintiff failed to utilize administrative remedies. Tuckel v. 

Grover, 660 F.3d 1249, 1254 (10th Cir. 2011) (citing Jones v. Bock, 549 U.S. 199, 212 

(2007)). Once a defendant shows the plaintiff failed to exhaust, the burden shifts to the 

Appellate Case: 23-8089 Document: 010111098748 Date Filed: 08/22/2024 Page: 3
4 

plaintiff to show the remedies were unavailable. Id. Remedies are unavailable under the 

PLRA when “prison officials prevent, thwart, or hinder a prisoner’s efforts to avail 

himself of the administrative remedy.” Id. at 1252 (quoting Little v. Jones, 607 F.3d 

1245, 1250 (10th Cir. 2010)). 

We construe Plaintiff’s appellate pleadings liberally. James v. Wadas, 724 F.3d 

1312, 1315 (10th Cir. 2013) (citing Garrett v. Selby Connor Maddux & Janer, 425 F.3d 

836, 840 (10th Cir. 2005)) (holding that we liberally construe pro se filings). Plaintiff 

alleges that BHCJ denied all his inmate request forms and destroyed his relevant inmate 

request forms that provided proof he requested to move cells away from Seymour. 

Giving his argument a liberal construction, we understand him to say that he exhausted 

his administrative remedies. We disagree. 

To begin with, Plaintiff’s allegations are conclusory and, therefore, do not 

convince us that Plaintiff exhausted his administrative remedies. On the contrary, the 

record suggests that Plaintiff did not exhaust. Plaintiff admits as much in handwritten 

documents where he seems to excuse his failure to exhaust by stating, “I could not grieve 

further because USMS moved me to another facility.” But we have required exhaustion, 

even where authorities transfer inmates to other facilities. See, e.g., Patel v. Fleming, 415 

F.3d 1105, 1111 (10th Cir. 2005) (holding that a prisoner failed to exhaust administrative 

remedies where, after he was transferred to a different facility, he failed to timely file his 

grievance). So, even accepting Plaintiff’s statement as true, he has not justified his 

failure to complete the grievance process regarding his complaints against BHCJ’s after 

his transfer. Indeed, we require exhaustion of all available administrative remedies, 

Appellate Case: 23-8089 Document: 010111098748 Date Filed: 08/22/2024 Page: 4
5 

“[e]ven where the ‘available’ remedies would appear to be futile at providing the kind of 

remedy sought.” Jernigan, 304 F.3d at 1032 (citing Booth v. Churner, 532 U.S. 731, 740 

(2001)). 

Plaintiff failed to exhaust all of BHCJ’s grievance procedures, so he cannot file a 

§ 1983 action against Defendants. The district court did not err when entering judgment 

in Defendants’ favor. 

III.

We AFFIRM the district court’s judgment. Defendant has presented no nonfrivolous argument in favor of reversal. Accordingly, we DENY Plaintiff’s motion to 

proceed in forma pauperis and remind Plaintiff of his obligation make full and immediate 

payment of his appellate filing fees. Ford v. Pryor, 552 F.3d 1174, 1180 (10th Cir. 2008) 

(quoting Braley v. Campbell, 832 F.2d 1504, 13010 (10th Cir. 1987)) (“An appeal is 

frivolous when the result is obvious, or the appellant's arguments of error are wholly 

without merit.”). We also issue a strike against Plaintiff and advise Plaintiff that if he 

accrues three strikes, 28 U.S.C. § 1915(g) will bar him from proceeding in forma 

pauperis in any civil action filed in federal court unless the court determines an 

“imminent danger of serious physical injury” exists. 

Entered for the Court 

Joel M. Carson III 

Circuit Judge 

Appellate Case: 23-8089 Document: 010111098748 Date Filed: 08/22/2024 Page: 5