* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### January 31, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

RICHARD D. FRY, Plaintiff-Appellant,

v. DIANE AL-ABDULJALIL, M.D.; CAPTAIN ROD BUXMAN; SERGEANT ROCKY SMITH; and SERGEANT DAVE BELL. Defendants-Appellees. No. 05-1179 (D.C. No. 99-MK-2388 (CBS))

(D. Colo.)

ORDER AND JUDGMENT *

Before McCONNELL , ANDERSON , and BALDOCK , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Richard D. Fry appeals the district court’s grant o f summary judgment in favor of appellees on his 42 U.S.C. § 1983 claims. He also appeals the district court’s denial of his motion for reconsideration. We have jurisdiction under 28 U.S.C. § 1291, and we AFFIRM.
I Mr. Fry is legally blind. Upon his arrival at Frem ont Correctional Facility in May 1997, he requested assignment to a single-oc cupancy cell because of his impairment. His request was denied, and Mr. Fry wa s assigned to a doubleoccupancy cell with Spencer Peterson as his cell mate. Mr. Fry contends that Mr. Peterson engaged in a campaign of harassment ag ainst him. Mr. Fry alleges that he repeatedly contacted defendants Buxman, Smi th and Bell to complain about Mr. Peterson’s harassment, and to request a s ingle-occupancy cell. His requests were denied. In December 1997, Mr. Fry and Mr. Peterson were inv olved in a physical altercation, which caused injuries to Mr. Fry (“the Peterson incident”). Mr. Fry was housed in another facility for medical treatmen t after the Peterson incident, but returned to Fremont in February 1998. At that time, he was housed in a cell with Mike Dewine, despite again requesting that he be assigned to a singleoccupancy cell. He alleges that he became ill with stomach problems, and that Mr. Dewine caused these problems by placing foreignsubstances in his drinks-3-

(“the Dewine incident”). In November 1998, defendant Al-Abduljalil recommended that Mr. Fry be given a single-occupanc y cell. In December 1999, Mr. Fry filed a complaint againstappellees and several other defendants, alleging that they failed to prot ect him from harm resulting in injury during the Peterson incident and the Dewine incident. After amending his complaint several times, two Eighth Amendment claim s remained pending against the parties to this appeal: 1) that Buxman, Smith, and Bell were deliberately indifferent and grossly negligent by failing to ass ure Mr. Fry’s safety and address his serious medical needs; and 2) that Dr. Al-Abdul jalil acted with deliberate indifference to Mr. Fry’s serious medical needs andhealth and safety when she denied Mr. Fry’s request for a single-occupancy cel l. The district court granted summary judgment in favo r of appellees based on its determination that Mr. Fry failed to exhaust hi s administrative remedies with respect to the Peterson incident, and that he faile d to establish that he suffered any physical injury as a result of the Dewine incid ent. Mr. Fry filed a motion for reconsideration of the district court’s order grant ing summary judgment, which the district court denied.
II We review de novo the district court’s grant of sum mary judgment in favor of appellees, applying the same standards as the di strict court. See Orr v. City of-4-

Albuquerque , 417 F.3d 1144, 1148 (10th Cir. 2005). We review for abuse of discretion the district court’s denial of the motio n for reconsideration. See Matosantos Commercial Corp. v. Applebee’s Int’l, In c. , 245 F.3d 1203, 1213 (10th Cir. 2001). Exhaustion of Administrative Remedies An inmate must exhaust all available administrative remedies before filing suit. 42 U.S.C. § 1997e(a). The exhaustion requir ement applies to all suits regarding prison life, whether they challenge gener al circumstances or particular episodes. See Porter v. Nussle , 534 U.S. 516, 532 (2002). The burden of demonstrating exhaustion is on the plaintiff. See Steele v. Fed. Bureau of
Prisons , 355 F.3d 1204, 1209-10 (10th Cir. 2003). The district court determined that Mr. Fry had neve r filed a grievance concerning his request for a single-occupancy cell, or regarding the injuries he suffered after the Peterson incident. Mr. Fry esse ntially argues that he did not have to exhaust any administrative remedies with re spect to his request for a single-occupancy cell because the grievance procedu re does not apply to those kinds of “classification” issues. Aplt. Br. at 18. On appeal, Mr. Fry does not provide any record support for this assertion. Sim ilarly, in the district court, Mr. Fry did not provide a definition of classificat ion or explain how his request constituted a classification issue. In contrast, t he appellees did provide the-5-

following definitions from the Department of Correc tions administrative regulation: 1) “Classification” is “[t]he judgmenta l and discretionary process whereby an inmate is regularly reviewed to determin e the level of custody and facility assignment,” and 2) “Custody level” is “[t ]he degree of supervision required for each inmate utilizing the terms of min imum, minimum restricted, medium, close, and administrative segregation.” Ap lt. App., Vol. II at 338. As the district court correctly noted, “nothing in the definition of ‘classification’ suggests that the decision to assign an inmate to asingle- or double-occupancy cell falls within its definition.” Id. at 430. The district court also noted that, even if Mr. Fry’s request was a classification issue, the grievance procedure state s that there is an appeal process available with regard to classification issues, butMr. Fry did not demonstrate that he exhausted that process. In the district court, Mr. Fry simply argued that he did not need to exhaust his administrative remedies bec ause the grievance procedure was not applicable to classification issues. Mr. F ry now argues for the first time on appeal that he did exhaust the separate classifi cation appeal process by making verbal requests that he be reassigned to a single-o ccupancy cell. Again, he does not offer any record support for his argument. Aplt . Br. at 18-19. Moreover, he did not make this argument before the district court. Accordingly, this argument is waived. See Smith v. Rogers Galvanizing Co., 128 F.3d 1380, 1385-86 (10th-6-

Cir. 1997) (“Generally, we will not consider an iss ue that was not raised and resolved in the trial court.”) Finally, Mr. Fry asserts that he was unable to file a grievance because he is legally blind and therefore the administrative reme dies were not available to him.
See 42 U.S.C. 1997e(a) (“No action shall be brought . . . until such administrative remedies as are available are exhausted.” (emphasis added)). Mr. Fry fails to explain, however, how he was able to file at least two other grievances during this same period of time. He fil ed one grievance after the Peterson incident claiming that some of his persona l items were missing when he returned from medical treatment, and he filed anoth er grievance related to the Dewine incident. Because Mr. Fry was able to use the grievance procedure on other occasions, he has not demonstrated that the a dministrative remedies were not available to him. Physical Injury Requirement Mr. Fry did file a grievance with respect to the De wine incident. The district court determined, however, that Mr. Fry ha d not satisfied the physical injury requirement in 42 U.S.C. § 1997e(e). That s ection states: “No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional inju ry suffered while in custody without a prior showing of physical injury .” Id. (emphasis added). Mr. Fry-7-

asserts that he did make a showing of physical inju ry. He contends that he submitted an affidavit in which he stated that he s uffered stomach problems due to chemicals being placed in his drink by Mr. Dewin e. He also asserts that an unidentified doctor at Fremont verbally confirmed h is self-diagnosis. In response to summary judgment, Mr. Fry made the f ollowing statement: “Mr. Fry became ill with stomach problems, and beli eves it is a result of Mr. Dewine placing cleaning solutions in Mr. Fry’s drinks. The doctor verbally confirmed Mr. Fry’s suspicions. Please see Exhibit‘A’, ¶ 12.” Aplt. App., Vol. II at 249. Exhibit A is Mr. Fry’s affidavit, which states: “I was going to the doctor for stomach problems, and believed that Mr. Dewine was putting cleaning solutions in my drinks. The doctor confirmed my be lief.” Id. at 259. Mr. Fry’s personal conclusions regarding his stomac h problems are insufficient to demonstrate a triable issue of fact for the purpose of overcoming summary judgment. Fitzgerald v. Corrections Corp. of America , 403 F.3d 1134, 1143 (10th Cir. 2005); see also Kayser v. Caspari , 16 F.3d 280, 281 (8th Cir. 1994) (stating that an inmate’s self-diagnosis alone cann ot establish that he suffered from kidney stones). Moreover, the statements thata doctor confirmed the basis for his stomach problems directly contradicts the f ollowing testimony from his deposition:-8-

Q. Okay. Did any physician or medical professional diagnose you as having any injury as a result of ingesting the cleaning fluids? A. It was making me sick. I was vomiting. I wasn’t diagnosed, but I was sick, okay. It didn’t do me no good I kn ow that. Q. I understand you were sick, but did anybody ever pinpoint the cause of that sickness to your knowledge? A. Well, no. When the P.A. told me about the single cell order , in my own head I thought, well, I’m getting away from this guy so I didn’t push it. Aplt. App, Vol. I at 126 (emphasis added). Mr. Fry failed to come forward with evidence suffic ient to demonstrate a triable issue of fact as to whether he actually suf fered any injury traceable to defendants’ conduct. Motion for Reconsideration Mr. Fry filed a motion for reconsideration with th e district court challenging the district court’s determination thathe had not exhausted his administrative remedies. In his motion for reconsi deration, he argued that the written grievance procedure was not available to hi m because of his visual impairment. The district court denied the motion f or reconsideration because this argument existed at the time of his response to sum mary judgment and could have been presented at that time. Moreover, the distric t court noted that Mr. Fry had invoked the written grievance procedure at least tw ice, rebutting his assertion that the procedure was not available to him. As discuss ed supra , we agree that Mr. Fry did not demonstrate that the grievance proc edure was unavailable to him.-9-

The district court did not abuse its discretion in denying the motion for reconsideration.-10-

The judgment of the district court is AFFIRMED.

Entered for the Court

Michael W. McConnell Circuit Judge