UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JOHNNY L. HARDEMAN, a/k/a Lo’re 

Pink, 

 Plaintiff - Appellant, 

v. 

JESSICA SMITH, P.R.E.A. 

Monitor/Warden Assistant; JERRY 

PERRY, Unit Mgr. OSP; HEATHER 

DIAZ, Psych. Services OSP; PATRICIA 

SORRELLS, Medical Admin. OSP; 

MARK KNUTSON; DAVID PARKER, 

Personal Director; JERRY CHRISMAN, 

Warden, 

 Defendants - Appellees. 

No. 18-7016 

(D.C. No. 6:16-CV-00238-RAW-SPS) 

(E.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before McHUGH, BALDOCK, and O’BRIEN, Circuit Judges. 

_________________________________ 

Johnny L. Hardeman, a/k/a Lo’re Pink, an Oklahoma state prisoner proceeding 

pro se, appeals the district court’s entry of summary judgment in this civil rights 

 * 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 

February 22, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

action under 42 U.S.C. § 1983. Exercising jurisdiction under 28 U.S.C. § 1291, we 

affirm based on Hardeman’s failure to exhaust administrative remedies. 

I. Background 

Hardeman is a transgender prisoner incarcerated at the Oklahoma Department of 

Corrections (ODOC), where she1

 is serving a life sentence for murder. In 2007, she was 

transferred from the Mack Alford Correctional Center (MACC) to the higher-security 

Oklahoma State Penitentiary (OSP) following a determination that she was having 

unprotected sex with other inmates despite being HIV-positive. She is still at OSP. 

Hardeman filed this § 1983 lawsuit in 2016, alleging that numerous prison 

officials have discriminated against her and violated her First, Eighth, and Fourteenth 

Amendment rights. She asserts a deliberate indifference claim based on their failure to 

provide any treatment for her gender nonconforming disorder. She also asserts claims 

relating to their refusal to transfer her out of a single-cell unit in segregation (and 

preferably to a lower security facility); their denial of jobs, programs, and parole; and 

post-grievance retaliation, including segregation and discontinuance of medication for a 

chronic condition. Finally, she asserts state-law tort claims. The Defendants-Appellees 

include ODOC’s regional director, the warden, an assistant warden who also serves as the 

facility’s Prison Rape Elimination Act monitor, a unit manager, a designee of the 

 1

 Appellant identifies as female, so we use female pronouns here. We also use 

her terminology when referring to transgender identity as a “gender nonconforming 

disorder.” 
3 

Administrative Review Authority (ARA), and medical providers at the facility 

(collectively, the “prison officials”). 

At the district court’s direction, the prison officials prepared an investigative 

Martinez report.2

 The same day the report was filed, the prison officials filed a motion 

to dismiss and/or a motion for summary judgment. Hardeman filed a response, as well 

as a request for injunctive relief. The district court granted summary judgment and 

denied the request for injunctive relief. It held that (1) Hardeman did not properly 

exhaust administrative remedies; (2) to the extent Hardeman asserted any 

official-capacity claims, the prison officials are immune from liability under the 

Eleventh Amendment; (3) Hardeman failed to show any defendant personally 

participated in the alleged constitutional violations and did not satisfy the requirements 

for supervisory liability; (4) Hardeman’s deliberate indifference claim fails because 

there are no genuine issues of material fact; (5) Hardeman’s procedural due process 

claims fail for the same reason; and (6) the prison officials are entitled to qualified 

immunity. The district court declined to exercise supplemental jurisdiction over any 

remaining state law claims. Hardeman filed this timely appeal. 

 

2

 The Prison Litigation Reform Act (PLRA) requires district courts to screen 

prisoner complaints for frivolousness, failure to state a claim, and immunity. 

28 U.S.C. §§ 1915(e)(2)(B), 1915A(a), (b). To facilitate this screening process, 

district courts can order prison officials to investigate the prisoner’s allegations to 

determine whether they have any factual or legal basis. See Hall v. Bellmon, 

935 F.2d 1106, 1109 (10th Cir. 1991). Because this authority stems from Martinez v. 

Aaron, 570 F.2d 317, 318-19 (10th Cir. 1978) (per curiam), courts frequently refer to 

the resulting report as a “Martinez report.” 
4 

II. Analysis 

A. The PLRA and Exhaustion of Administrative Remedies 

Our analysis necessarily begins with the threshold question of exhaustion. The 

PLRA provides that a prisoner cannot bring an action “with respect to prison 

conditions under section 1983 . . . until such administrative remedies as are available 

are exhausted.” 42 U.S.C. § 1997e(a); see also Jones v. Bock, 549 U.S. 199, 211 

(2007) (“[E]xhaustion is mandatory under the PLRA . . . .”). “[S]ubstantial 

compliance is insufficient.” Fields v. Okla. State Pen., 511 F.3d 1109, 1112 

(10th Cir. 2007). Proper exhaustion requires compliance with all of the prison’s 

grievance procedures, including “deadlines and other critical procedural rules[,] 

because no adjudicative system can function effectively without imposing some 

orderly structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 

90-91 (2006). Thus, “[a]n inmate who begins the grievance process but does not 

complete it is barred from pursuing a § 1983 claim under PLRA for failure to exhaust 

[her] administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 

2002). 

Because the exhaustion doctrine is an affirmative defense, the prison officials 

“bear the burden of asserting and proving that [Hardeman] did not utilize 

administrative remedies.” Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011). 

But once they prove failure to exhaust, “the onus falls on [Hardeman] to show that 

remedies were unavailable to [her].” Id. For example, exhaustion is not required 

“[w]here prison officials prevent, thwart, or hinder a prisoner’s efforts to avail 
5 

[herself] of an administrative remedy.” Little v. Jones, 607 F.3d 1245, 1250 

(10th Cir. 2010).

B. ODOC Procedures 

ODOC has adopted two sets of operations procedures (OPs) that are relevant to 

our exhaustion inquiry: (1) “Management of Gender Nonconforming Inmates” 

(OP-140147), and (2) “Inmate/Offender Grievance Process” (OP-090124). 

Procedure OP-140147 addresses the management of gender nonconforming 

offenders. See R., Vol. 2 at 34-45 (effective Oct. 29, 2015), 47-52 (revised effective 

Apr. 28, 2016). It establishes a Personal Identity Administrative Review Authority 

(PIARA) and requires gender nonconforming offenders like Hardeman to comply with 

the grievance process set forth in OP-090124 to ask PIARA to assess their housing, 

clothing, and health care needs (such as hormonal therapy and surgical sex reassignment). 

Procedure OP-090124 contains ODOC’s grievance process, id. at 55-75,3

 and 

provides offenders with a method to “seek formal administrative decisions or answers to 

issues or complaints.” Id. at 56. Grievable issues include “conditions of confinement, 

actions of staff, and incidents occurring within or under the authority and control of 

ODOC that have personally affected” the offender, “for which a remedy may be allowed 

by the agency or by law.” Id. at 57. “Personal [i]dentity” issues are listed as an 

appropriate topic for grievances—“including, but not limited to, gender variant clothing, 

hormone treatment, specific mental health treatment, separate showering, etc.” Id. at 60. 

 3

 This version of OP-090124 has an effective date of July 19, 2016 (revised 

Sept. 15, 2016) and is the only version in the record. 
6 

Unless the complaint involves a sensitive topic or an emergency, the offender 

must attempt to resolve the complaint through an informal resolution process before 

submitting a grievance. The offender must first speak to an appropriate staff member; if 

those efforts are unsuccessful, the offender must file a written Request to Staff. The 

formal grievance process then begins with the submission of a written Inmate/Offender 

Grievance Form (with the related Request to Staff attached) to the reviewing authority or 

the facility correctional health services administrator, whichever is appropriate. The next 

step is an appeal to the ARA or to the Chief Medical Officer if it is a medical grievance. 

The ruling of the ARA or Chief Medical Officer is final and concludes the administrative 

remedy procedures available through ODOC. Each step must be completed within a 

designated time frame, and procedures are in place for cases in which prison officials 

don’t respond. 

C. Hardeman’s Grievances 

Hardeman argues that she exhausted her administrative remedies by submitting 

Requests to Staff and Inmate/Offender Grievance Forms and then appealing the denial of 

her grievances to the ARA. To the extent there were any procedural defects (which she 

disputes), she attributes them to the prison officials’ conduct. 

The district court outlined the requirements for ODOC’s grievance process and 

examined each of Hardeman’s Requests to Staff, Inmate/Offender Grievance Forms, and 

appeals against that backdrop. It concluded she did not comply with all procedural 

requirements and thus did not complete the appeals process. The district court 

acknowledged “these grievance proceeding[s] are somewhat confusing,” but attributed 
7 

“much of the confusion” to Hardeman’s “failure to comply with the grievance policy.” 

R., Vol. 5 at 104. Having found that Hardeman failed to exhaust her administrative 

remedies, the district court granted summary judgment for the prison officials, though it 

proceeded to analyze the remaining claims and defenses anyway. 

D. Standard of Review 

We review de novo the district court’s failure-to-exhaust finding. 

See Jernigan, 304 F.3d at 1032. Because Hardeman is proceeding pro se, “we

construe [her] pleadings liberally.” Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 

(10th Cir. 2003). We make some allowances for deficiencies, such as unfamiliarity 

with pleading requirements, failure to cite appropriate legal authority, and confusion 

of legal theories. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 

(10th Cir. 2005). But we “cannot take on the responsibility of serving as [her] 

attorney in constructing arguments and searching the record.” Id. 

E. Failure to Exhaust 

We agree with the district court’s conclusion that Hardeman did not exhaust 

her administrative remedies. Our careful review of the record revealed numerous 

procedural errors, including (1) failing to attach a copy of the required Request to 

Staff to a grievance form to complete the first step of the grievance process; (2) filing 

appeals with the ARA after being informed of procedural errors without first 

remedying those errors; (3) not using the proper form for an appeal; (4) submitting a 

grievance form with a Request to Staff that does not match the issue on the grievance 

form; and (5) failing to file a timely appeal. 
8 

We cannot overlook these deficiencies. “[T]he PLRA does not enable judges, 

by creative interpretation of the exhaustion doctrine, to prescribe or oversee prison 

grievance systems.” Jernigan, 304 F.3d at 1032 (brackets and internal quotation 

marks omitted). “[M]andatory exhaustion statutes like the PLRA establish 

mandatory exhaustion regimes, foreclosing judicial discretion.” Ross v. Blake, 

136 S. Ct. 1850, 1857 (2016). Furthermore, we are not persuaded that the prison 

officials’ actions here rose to the level of preventing, thwarting, or hindering, such 

that an administrative remedy was unavailable to Hardeman. See Little, 607 F.3d at 

1250. 

F. Deliberate Indifference Claim 

Because we affirm based on Hardeman’s failure to exhaust administrative 

remedies, we need not reach her appellate arguments about the inadequacy of the 

discovery process or the district court’s failure to appoint counsel; after all, her 

claims were not properly before the district court. Likewise, we need not reach the 

merits of her constitutional claims or the prison officials’ defenses (such as 

insufficient allegations of personal involvement, qualified immunity, and sovereign 

immunity for official-capacity claims). 

Even so, a dismissal based on failure to exhaust is without prejudice, so 

Hardeman’s claims may well resurface before the district court. The district court 

properly recounted the subjective and objective components of a deliberate 

indifference claim. However, we identified three problematic matters within the 
9 

district court’s analysis of the deliberate indifference claim during our review. To 

ensure those matters are addressed as may become necessary, we discuss them here. 

First, the district court relied on an incomplete record. The internal page 

numbers on the medical records are all odd numbers, see, e.g., R., Vol. 6, at 13-84, 

whereas the internal page numbers on other records are both odd and even, see, e.g., 

id. at 86-87. It thus appears that only one side of the medical records was copied for 

the Martinez report. 

Second, the district court inaccurately characterized the existing record twice 

in applying the standard and concluding “the acts complained of do not show 

deliberate indifference to plaintiff’s medical needs as alleged,” R., Vol. 5 at 107. 

In the first instance, the district court stated, “It is clear from the record . . . 

that Plaintiff received medical treatment to discuss [her] gender issues beginning on 

September 22, 2015 . . . [and] was seen on numerous occasions from that date for the 

same issue.” Id. But on September 22, a psychological clinician merely conducted 

mental health rounds, noting that Hardeman was seen in her cell and asked to discuss 

her gender issues in private when possible. R., Vol. 6 at 41. Similarly, the record 

evidence cited by the district court as to “numerous” follow-up treatments shows 

only a series of in-cell meetings between Hardeman and medical personnel, during 

which Hardeman (1) advised medical personnel she wanted to talk about and/or 

receive treatment for her gender identity disorder and (2) expressed frustration at the 

lack of response. 
10 

In the second instance, the district court stated: “It is clear from the record 

that medical care was provided. Where there is such evidence of a ‘series of sick 

calls, examinations, diagnoses, and medication . . . it cannot be said there was a 

“deliberate indifference” to the prisoner’s complaints.’” R., Vol. 5 at 107 (quoting 

Smart v. Villar, 547 F.2d 112, 114 (10th Cir. 1976) (alteration in original)). The 

record does not support this summary invocation of Smart either. There appears to 

be a genuine issue of material fact as to whether the mental health rounds described 

above constitute “medical care” or “sick calls.” The documentation of Hardeman’s 

clinical interview shows only a diagnosis of “suspected” gender identity disorder, not 

a confirmed one. R., Vol. 6 at 46. And no medication was dispensed. 

Third, the district court was overly ambitious in finding Hardeman “is merely 

asserting a difference of opinion as to the kind and quality of medical treatment 

necessary under the circumstances.” R., Vol. 5 at 108. This finding disregards the 

many pleadings in which Hardeman repeatedly argues she is not receiving any 

treatment at all. Also, it is at odds with Lamb v. Norwood, 899 F.3d 1159, 1161 

(10th Cir. 2018).4

 In Lamb, this court identified four currently available treatments 

 4

 The transgender prisoner in Lamb received hormone treatment, 

testosterone-blocking medication, and weekly counseling sessions, but she wanted 

greater doses of hormones and a sex-change operation too. She alleged that prison 

officials were deliberately indifferent to her gender dysphoria, but the district court 

granted summary judgment to the officials. This court affirmed, holding that a 

reasonable factfinder could not infer deliberate indifference given the existing 

treatment, and reiterating that “prison officials do not act with deliberate indifference 

when they provide medical treatment even if it is subpar or different from what the 

inmate wants.” 899 F.3d at 1162. 
11 

for gender dysphoria: (1) changes in gender expression and role; (2) hormone therapy 

to make the body feminine or masculine; (3) surgery to change primary or secondary 

sex characteristics; and (4) psychotherapy. Id. Here, a reasonable jury could 

conclude the in-cell meetings referenced above do not rise to the level of 

“psychotherapy,”5

 and the record contains no evidence of the other three possible 

treatments. If there is at least a genuine issue as to whether Hardeman has even 

received any of the four currently available treatments, she cannot simply be 

“asserting a difference of opinion” as to “the kind and quality of medical treatment.” 

There was no need for the district court to reach the merits of Hardeman’s 

deliberate indifference claim. If Hardeman reasserts this claim in future litigation 

after proper exhaustion, the district court should give due consideration to the matters 

we have discussed. 

G. Sealing of the Record 

Last, we address Hardeman’s argument that the district court did not properly 

seal the record. The prison officials moved to seal the medical records attached to 

the Martinez report because they contain private health information, which is 

confidential under state law. Hardeman opposed the motion, even though it was for 

 5

 Hardeman’s dialogue with a psychologist during a request for health services 

is informative in this regard. Hardeman advised, “I never get a real opportunity to 

discuss issues with you when you do your rounds like I would like to.” R., Vol. 2 at 

238. That psychologist responded, “As I have discussed with you, rounds are meant 

for check-in, if you would like to have more time we can set that up.” Id. Yet the 

record shows the discussions regarding Hardeman’s gender nonconforming disorder 

kept taking place during rounds. 
12 

her own protection, but the district court granted it. Hardeman now makes two 

equally unavailing arguments relating to sealing. First, she argues more of the record 

should have been sealed, even though she never made such a request. Second, she 

argues she did not receive copies of the sealed documents and was thus “denied the 

opportunity to marshall a proper defense,” Aplt. Opening Br. at 26; yet, the 

certificate of service indicates otherwise. We agree with the district court’s approach 

on the sealing of medical records. 

III. Conclusion 

We affirm the district court’s judgment. 

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge