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 federa l 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 appella te record, this pa nel 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 

### August 22, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-8089 Document: 010111098748 Date Filed: 08/22/2024 Page: 12 I. The United States Marshals Service housed Plaintiff at the Bi g Horn County Jail (“BHCJ”) pursuant to an ag reement. Plaintiff shared a cell with Drew Seymour. Seymour threatened Plaintiff daily because Plain tiff 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 inmate s, requiring inmates to submit an inmate request form. Under this procedure, either th e sergeant, lieutenant, or captain reviews an inmate’s initial complaint and renders a decisi on. The inmate may appeal the decision to the sergeant who decides the appeal. The inma te may then appeal the sergeant’s decision to the captain, who reviews it and makes a fi nal 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 me ntioned any conflicts with other inmates. For example, Plaintiff requested a change of cell on April 5, 2023, but he did not mention a conf lict with another inmate. Pl aintiff and Defendants crossmoved for summary judgment. The district court denied Pl aintiff’s motion for summary Appellate Case: 23-8089 Document: 010111098748 Date Filed: 08/22/2024 Page: 23 judgment and granted Defendants’ motion fo r summary judgment, fi nding that Plaintiff failed to exhaust available administra tive remedies. Plaintiff appeals.
II. We review de novo a district court’s de cision to grant summary judgment. Rivero v. Bd. of Regents of Univ. of N.M., 950 F.3d 754, 758 (10th Cir. 20 20) (quoting Lauck v. Campbell Cnty., 627 F.3d 805, 8 09 (10th Cir. 2010)). We affirm the district court’s grant of summary judgment if the movant establishe s 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 fa ilure 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 remedi es 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 pl aintiff 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). “S ubstantial compliance is insuffici ent.” 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 assert ing the affirmative defense of failure to exhaust and provi ng that the plaintiff fa iled to utilize administrativ e 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 exhaus t, the burden shifts to the Appellate Case: 23-8089 Document: 010111098748 Date Filed: 08/22/2024 Page: 34 plaintiff to show the remedies were unavailabl e. 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 pleadi ngs 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 lib erally construe pro se filings). Plaintiff alleges that BHCJ denied all his inmate reque st forms and destroyed his relevant inmate request forms that provided proof he reque sted 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 admi nistrative remedies. On the contrary, the record suggests that Plaintiff did not exhaus t. Plaintiff admits as much in handwritten documents where he seems to excuse his failur e to exhaust by stating, “I could not grieve further because USMS moved me to another fa cility.” But we have required exhaustion, even where authorities transfer in mates 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 st atement as true, he has not justified his failure to complete the grieva nce process regarding his complaints against BHCJ’s after his transfer. Indeed, we require exhaustio n of all available administrative remedies, Appellate Case: 23-8089 Document: 010111098748 Date Filed: 08/22/2024 Page: 45 “[e]ven where the ‘available’ remedies would ap pear to be futile at providing the kind of remedy sought.” Jernigan, 304 F.3d at 1032 (citing Booth v. Churne r, 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 judgme nt. Defendant has presented no nonfrivolous argument in favor of reversal. Ac cordingly, we DENY Plaintiff’s motion to proceed in forma pauperis and remind Plaintiff of his ob ligation 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 issu e a strike against Plaintiff and advise Plaintiff that if he accrues three strikes, 28 U.S.C. § 1 915(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