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 prisone r proceeding pro se, appeals the district cour t’s entry of summary judgment in this civil rights

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral ar gument. This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### February 22, 2019
Elisabeth A. Shumaker Clerk of Court2 action under 42 U.S.C. § 1983. E xercising jurisdiction under 2 8 U.S.C. § 1291, we affirm based on Hardeman’s failu re to exhaust administrative re medies.
I. Background Hardeman is a transgender prisone r incarcerated at the Oklahoma Department of Corrections (ODOC), where she 1 is serving a life sentence fo r murder. In 2007, she was transferred from the Mack Alfor d Correctional Center (MACC) to the higher-security Oklahoma State Penitentiary (OSP ) following a determination tha t she was having unprotected sex with other inmat es despite being HIV-positive. She is still at OSP. Hardeman filed this § 1983 lawsu it in 2016, alleging that numer ous prison officials have discriminated aga inst 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 g ender nonconform ing disorder. S he also asserts claims relating to their refusal to tra nsfer her out of a single-cell unit in segregation (and preferably to a lower security f acility); their denial of jobs, programs, and parole; and post-grievance retaliation, incl uding segregation and discontin uance of medication for a chronic condition. Finally, she a sserts state-law tort claims. The Defendants-Appellees include ODOC’s regional directo r, the warden, an assistant ward en who also serves as the facility’s Prison Rape Eliminatio n 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 “ge nder nonconforming disorder.”3 Administrative Review Authority (ARA), and medical providers at the facility (collectively, the “prison officials”). At the district court’s directi on, the prison officials prepare d an investigative
Martinez report. 2 The same day the report was file d, the prison officials filed a motion to dismiss and/or a motion for s ummary judgment. Hardeman file d a response, as well as a request for injunctive relie f. The district court granted summary judgment and denied the request for injunctiv e relief. It held that (1) Har deman did not properly exhaust administrative remedies; (2) to the extent Hardeman ass erted any official-capacity claims, the p rison officials are immune from liability under the Eleventh Amendment; (3) Hardeman failed to show any defendant p ersonally participated in the alleged co nstitutional violations and did n ot satisfy the requirements for supervisory liability; (4) Hardeman’s deliberate indifferen ce claim fails because there are no genuine issues of m aterial fact; (5) Hardeman’s pr ocedural due process claims fail for the same reason; and (6) the prison officials a re entitled to qualified immunity. The district court d eclined to exercise supplemental jurisdiction over any remaining state law claims. Har deman filed this timely appeal.

2 The Prison Litigation Reform A ct (PLRA) requires district cour ts to screen prisoner complaints for frivolousn ess, 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 inve stigate the p risoner’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 s tems from Martinez v. Aaron , 570 F.2d 317, 318-19 (10th Ci r. 1978) (per curiam), courts fr equently refer to the resulting report as a “ Martinez report.”4 II. Analysis
A. The PLRA and Exhaustion of Administrative Remedies Our analysis necessar ily begins with the t hreshold question of exhaustion. The PLRA provides that a prisoner cannot bring an action “with resp ect to prison conditions under section 1983 . . . until such administrative r emedies 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). Pr oper exhaustion requires compliance with a ll of the prison’s grievance procedures, including “deadlines and other critical p rocedural rules[,] because no adjudicative system can function effectively without imposing some orderly structure on the c ourse of its proceedings.” Woodford v. Ngo , 548 U.S. 81, 90-91 (2006). Thus, “[a]n inmate who begins the grievance proc ess but does not complete it is barred from pursu ing a § 1983 claim under PLRA f or failure to exhaust [her] administra tive remedies.” Jernigan v. Stuchell , 304 F.3d 1030, 1032 (10th Cir. 2002). Because the exhaustion doctrine i s an affirmative defense, the prison officials “bear the burden of asserting an d proving that [Hardeman] did n ot 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 [Har deman] to show that remedies were unavailable to [her].” Id. For example, exhausti on is not required “[w]here prison officials preven t, thwart, or hinder a prisoner ’s efforts to avail5 [herself] of an admi nistrative remedy.” Little v. Jones , 607 F.3d 1245, 1250 (10th Cir. 2010).
B. ODOC Procedures ODOC has adopted two sets of ope rations procedures (OPs) that a re relevant to our exhaustion inquiry: (1) “Management of Gender Nonconformin g Inmates” (OP-140147), and (2) “Inmate/Offe nder Grievance Process” (OP-09 0124). Procedure OP-140147 addresses th e management of gender nonconfo rming offenders. See R., Vol. 2 at 34-45 (effective Oc t. 29, 2015), 47-52 (revised e ffective Apr. 28, 2016). It establishes a Personal Identity Administrat ive Review Authority (PIARA) and requires gender nonc onforming offenders like Hardem an to comply with the grievance process set forth in OP-090124 to ask PIARA to as sess their housing, clothing, and health care needs (s uch as hormonal therapy and s urgical 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 incl ude “conditions of confinement, actions of staff, and incidents o ccurring within or under the authority and control of ODOC that have personally affect ed” 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 s howering, etc.” Id. at 60.

3 This version of OP-090124 has a n effective date of July 19, 20 16 (revised Sept. 15, 2016) and is the only version in the record.6 Unless the complaint in volves a sensitive topic or an emergency , the offender must attempt to resolve the complaint throug h an informal resol ution process before submitting a grievance . The offender must first speak to an ap propriate staff member; if those efforts are unsuccessful, the offender must file a writte n Request to Staff. The formal grievance process then b egins with the submission of a w ritten Inmate/Offender Grievance Form (with the relate d Request to Staff attached) to the reviewing authority or the facility correctional health services administrator, whiche ver is appropriate. The next step is an appeal to the ARA or t o the Chief Medical Officer if it is a medical grievance. The ruling of the ARA or Chief M edical Officer is final and con cludes the administrative remedy procedures available throu gh ODOC. Each step must be co mpleted within a designated time frame, and proced ures are in place for cases in which prison officials don’t respond.
C. Hardeman’s Grievances Hardeman argues that she exhauste d her administrative remedies by submitting Requests to Staff and Inmate/Offe nder Grievance Forms and then appealing the denial of her grievances to the ARA. To th e extent there were any proced ural defects (which she disputes), she attributes them to the prison officials’ conduct

. The district court outlined the re quirements for ODOC’s grievan ce process and examined each of Hardeman’s Re quests 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 com plete the appeals process. Th e district court acknowledged “these grievance pro ceeding[s] are somewhat confus ing,” but attributed7 “much of the confusion” to Harde man’s “failure to comply with t he grievance policy.” R., Vol. 5 at 104. Having found that Hardeman failed to exhaus t her administrative remedies, the district court gr anted summary judgment for the p rison officials, though it proceeded to analyze th e remaining claims a nd defenses anyway.
D. Standard of Review We review de novo the district court’s failure-to-exhaust findi ng. See Jernigan , 304 F.3d at 1032. Because Har deman 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 al lowances for deficiencies, su ch as unfamiliarity with pleading requirements, fai lure to cite appropriate legal a uthority, and confusion of legal theories. See Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10th Cir. 2005). But we “ca nnot take on the responsibility of serving as [her] attorney in constructing argumen ts 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 th e required Request to Staff to a grievance form to comp lete the first step of the gri evance process; (2) filing appeals with the ARA after being informed of procedural errors without first remedying those errors; (3) not u sing the proper form for an ap peal; (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 deficien cies. “[T]he PLRA does not en able judges, by creative interpretation of the exhaustion doctrine, to presc ribe or oversee prison grievance systems.” Jernigan , 304 F.3d at 1032 (brackets and internal quotation marks omitted). “[M]andatory e xhaustion statutes like the PLRA establish mandatory exhaustion regimes, for eclosing judicial discretion.” Ross v. Blake , 136 S. Ct. 1850, 1857 (2016). Fur thermore, we are not persuade d that the prison officials’ actions here rose to the level of preventing, thwart ing, 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 Hardem an’s failure to exhaust admini strative remedies, we need not reach her appellate arguments about the i nadequacy of the discovery process or the distric t court’s failure to appoint co unsel; after all, her claims were not properly before t he district court. Likewise, we need not reach the merits of her constitu tional claims or the prison officials’ de fenses (such as insufficient allegations of pers onal involvement, qualified imm unity, and sovereign immunity for official -capacity claims). Even so, a dismissal based on fa ilure to exhaust is without pre judice, so Hardeman’s claims ma y well resurface before the district court. The district court properly recounted the subjectiv e and objective components of a deliberate indifference claim. However, w e identified three problematic m atters within the9 district court’s analysis of th e deliberate indifference claim during our review. To ensure those matters are addresse d as may become necessary, we discuss them here. First, the district court relied on an incomplete record. The internal page numbers on the medical reco rds 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 r ecords was copied for the Martinez report. Second, the district court inaccu rately characterized the exist ing record twice in applying the standard and conc luding “the acts complained of do not show deliberate indifference to plain tiff’s medical n eeds as alleged ,” R., Vol. 5 at 107. In the first instance, the distr ict court stated, “It is clear from the record . . . that Plaintiff r eceived medical t reatment to discuss [her] gend er issues beginning on September 22, 2015 . . . [and] w as seen on numerous occasions f rom that date for the same issue.” Id . But on September 22, a psychol ogical clinician merely conduc ted mental health rounds, noting that H ardeman was seen in her cell and asked to discuss her gender issues in private wh en possible. R., Vol. 6 at 41. Similarly, the record evidence cited by the district c ourt as to “numerous” follow-up treatments shows only a series of in-cell meetings between Hardeman and medical personnel, during which Hardeman (1) advised medi cal personnel she wanted to talk about and/or receive treatment for her gende r identity disorder and (2) expr essed frustration at the lack of response.10 In the second instance, the distr ict court stated: “It is clea r from the record that medical care was provided. Where there is such evidence o f 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 th is summary invocation of Smart either. There appears to be a genuine issue of material f act as to whether the mental he alth rounds described above constitute “medical care” o r “sick calls.” The documenta tion 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 disp ensed. Third, the district court was overly ambitious in finding Harde man “is merely asserting a differenc e of opinion as to the kind and quality of medical treatment necessary under the circumstanc es.” R., Vol. 5 at 108. This f inding disregards the many pleadings in which Hardeman repeatedly argues she is not r eceiving any treatment at all. Als o, it is at odds with Lamb v. Norwood , 899 F.3d 1159, 1161 (10th Cir. 2018). 4 In Lamb , this court identified four cu rrently available treatments

4 The transgender prisoner in Lamb received hormone treatment, testosterone-blocking medication , and weekly counseling session s, but she wanted greater doses of hormones and a sex-change operation too. She alleged that prison officials were deliberately indi fferent 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 g iven the existing treatment, and reiterating that “ prison officials do not act wi th deliberate indifference when they provide medical treatme nt even if it is subpar or dif ferent from what the inmate wants.” 899 F.3d at 1162.11 for gender dysphoria: (1) change s in gender expression and role ; (2) hormone therapy to make the body feminine or masc uline; (3) surgery to change p rimary or secondary sex characteristics; a nd (4) psychotherapy. Id. Here, a reasonable jury could conclude the in-cell meetings r eferenced above do not rise to t he level of “psychotherapy,” 5 and the record contains no evid ence of the other three possibl e treatments. If there is at leas t a genuine issue as to whether Hardeman has even received any of the four curren tly available treatments, she ca nnot simply be “asserting a difference of opi nion” as to “the kind and quality of medical treatment.” There was no need for the distr ict court to reach the merits of Hardeman’s deliberate indifference claim. If Hardeman reasserts this clai m in future litigation after proper exhaustion, the dis trict court shoul d give due con sideration to the matters we have discussed.
G. Sealing of the Record Last, we address Hardeman’s argum ent that the district court di d not properly seal the record. The prison offi cials moved to seal the medica l records attached to the Martinez report because they contain priv ate health information, which i s confidential under state law. Har deman opposed the motion, eve n though it was for

5 Hardeman’s dialogue with a psyc hologist during a request for h ealth services is informative in this regard. H ardeman advised, “I never get a real opportunity to discuss issues with you when you do your rounds like I would li ke to.” R., Vol. 2 at 238. That psychologist responded , “As I have discussed with yo u, rounds are meant for check-in, if you would like to have more time we can set th at up.” Id . Yet the record shows the discussions reg arding Hardeman’s gender noncon forming disorder kept taking place during rounds.12 her own protection, but the dis trict court granted it. Hardema n now makes two equally unavailing arguments rela ting to sealing. First, she a rgues more of the record should have been sealed, even t hough she never ma de such a requ est. Second, she argues she did not receive copies o f the sealed documents and w as thus “denied the opportunity to marshall a proper defense,” Aplt. Opening Br. at 26; yet, the certificate of service indicates o therwise. 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