UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

MICHAEL A. CAMPBELL, 

 Plaintiff - Appellant, 

v. 

JODY JONES, in her official and 

individual capacities; NADINE 

KELLOGG, in her official and individual 

capacities; REBECCA MAKER, in her 

official and individual capacities, 

 Defendants - Appellees. 

No. 16-6287 

(D.C. No. 5:13-CV-00926-R) 

(W.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before KELLY, MATHESON, and McHUGH, Circuit Judges. 

_________________________________ 

Michael A. Campbell, a pro se Oklahoma inmate, filed this 42 U.S.C. § 1983 

action, claiming prison officials violated his constitutional rights by withholding his 

medication and denying him treatment after he suffered a stroke. The district court 

granted defendants summary judgment, ruling that Mr. Campbell failed to exhaust his 

administrative remedies. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

 *

 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 

April 12, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

I 

The administrative grievance process for Oklahoma prisoners is well documented. 

It requires an “informal consultation with staff, then three written steps: a Request to 

Staff form, a formal grievance, and an appeal to the administrative review authority 

[ARA].” Thomas v. Parker, 609 F.3d 1114, 1117 (10th Cir. 2010). Appeals to the 

ARA, which includes the chief medical officer (CMO), complete the administrative 

grievance process. Little v. Jones, 607 F.3d 1245, 1249 & n.3 (10th Cir. 2010). 

Inmates facing a “substantial risk of personal injury or other irreparable harm” may 

submit an emergency grievance directly to the reviewing authority, R., Vol. 2 at 200 

(Okla. Dep’t of Corr. (ODOC) Offender Grievance Process OP-090124 § VIII.A), 

which is “[t]he facility head or facility correctional health services administrator 

(CHSA),” id. at 188 (Offender Grievance Process OP-090124 § I.E). 

II 

 Mr. Campbell has high blood pressure. On December 30, 2012, his cell flooded 

with sewage, forcing him to evacuate and abandon his blood-pressure medication. After 

six days of unsuccessfully requesting replacement medication from the prison’s medical 

staff, specifically defendants Maker and Kellogg, Mr. Campbell suffered a stroke. He 

was hospitalized for three days and discharged back to prison with new prescriptions and 

instructions to follow-up with the prison’s doctor. Thirteen days later, however, he still 

had not been seen for a follow-up or been given his replacement medication. 

Consequently, on January 22, 2013, Mr. Campbell submitted a detailed, two-page 

emergency grievance to the CMO, Genese McCoy, explaining his circumstances and 
3 

asking that he be treated in accord with his discharge instructions.1

 He also asked that the 

prison’s medical staff be made to understand that withholding his medication caused him 

to suffer a stroke and was endangering his life. Last, he asked that defendants be 

terminated. The CMO returned the grievance unanswered, stating it was not an 

emergency, it sought disciplinary action against the staff (which could not be addressed 

through the grievance process), and it should have been submitted to the facility’s CHSA, 

defendant Jody Jones. 

Given this latter directive, Mr. Campbell sent Ms. Jones, the CHSA, a Request to 

Staff on January 31, asking that she implement a policy to ensure that prisoners receive 

their medication to avoid “an unnecessary stroke like what happened to me.” R., Vol. 1 

at 63. Ms. Jones replied, “Medication administration policy exists.” Id. 

Dissatisfied with this response, Mr. Campbell submitted a nearly identical copy of 

his emergency grievance to the prison’s warden on February 12, seeking to implement 

the same policy he sought in his Request to Staff. The warden’s designee returned the 

grievance unanswered, stating it should have been filed with the prison’s CHSA, 

Ms. Jones. 

 1

 By this date, January 22, Mr. Campbell had filed three other documents that 

did not advance his efforts to exhaust. On January 2, he filed a request for medical 

services, asking for a knee brace and replacement medication. He was told that 

replacement medication was forthcoming. On January 10, he submitted a Request to 

Staff, seeking to implement a policy to ensure nurses did not withhold high-blood 

pressure medication and urging that defendant Maker be terminated. The Request to 

Staff was returned unanswered because it sought disciplinary action against a staff 

member, which could not be addressed through the grievance process. On 

January 14, Mr. Campbell submitted a Request to Staff, seeking the name of a staff 

member who was involved with his care. The Request to Staff was answered that 

same day. 
4 

Mr. Campbell therefore submitted his grievance to Ms. Jones on February 18. She 

returned it unanswered for two reasons, the second of which was invalid: First, she 

wrote, “No additional pages allowed except for the original ‘Request to Staff.’” Id. at 68. 

Second, she wrote, “All medical grievances will be submitted to the facility CHSA,” id., 

which it clearly was. Also, Ms. Jones warned him that he could be subject to grievance 

restrictions and, in a separate correspondence, she stated that because he failed to rectify 

the procedural errors in his grievance—apparently by failing to remove any additional 

pages—he “waived/forfeited the opportunity to proceed in the grievance process” under 

Offender Grievance Process OP-090124 § VI.B.6, id. at 70. This was incorrect, however, 

because the only previously identified procedural error was Mr. Campbell’s mistake in 

sending his February 12 grievance to the warden rather than the CHSA, which he 

corrected. In any event, Mr. Campbell resubmitted his grievance to Ms. Jones, prompting 

her to impose grievance restrictions under Offender Grievance Process OP-090124 § IX. 

It is undisputed that Mr. Campbell did not submit a final grievance appeal to the CMO. 

A magistrate judge determined that, under these circumstances, there was an 

inference that the final stage of the grievance process was unavailable. The district court 

declined to adopt that conclusion, however, ruling that Ms. Jones’ error in rejecting 

Mr. Campbell’s grievance did not render the final administrative appeal stage unavailable 

and Mr. Campbell’s failure to pursue it demonstrated that he failed to exhaust. The court 

therefore granted summary judgment to defendants on exhaustion grounds, and 

Mr. Campbell appealed. 
5 

III 

 “We review summary judgment decisions de novo, applying the same legal 

standard as the district court.” Tuckel v. Grover, 660 F.3d 1249, 1251 (10th Cir. 

2011) (internal quotation marks omitted). “Summary judgment is appropriate when 

there is no genuine issue of material fact and the movant is entitled to judgment as a 

matter of law.” Id. (internal quotation marks omitted). Because Mr. Campbell is 

pro se, we afford his materials a liberal construction but do not act as his advocate. 

See United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). 

“There is no question that exhaustion is mandatory under the Prison[] 

Litigation Reform Act (PLRA) and that unexhausted claims cannot be brought in 

court.” Thomas, 609 F.3d at 1117 (brackets and internal quotation marks omitted). 

Exhaustion is required “[e]ven where the ‘available’ remedies would appear to be 

futile at providing the kind of remedy sought.” Jernigan v. Stuchell, 304 F.3d 1030, 

1032 (10th Cir. 2002). Remedies are unavailable if prison officials are “unable or 

consistently unwilling to provide any relief,” if “no ordinary prisoner can make sense 

of what [the grievance process] demands,” or if “administrators thwart inmates from 

taking advantage of a grievance process through machination, misrepresentation, or 

intimidation.” Ross v. Blake, 136 S. Ct. 1850, 1859-60 (2016). “[P]risoners must 

complete the administrative review process in accordance with the applicable 

procedural rules[]—rules that are defined not by the PLRA, but by the prison 

grievance process itself.” Thomas, 609 F.3d at 1118 (internal quotation marks 
6 

omitted). “An inmate who begins the grievance process but does not complete it is 

barred from pursuing a § 1983 claim . . . .” Jernigan, 304 F.3d at 1032. 

Our review of the record confirms that Mr. Campbell failed to exhaust his 

administrative remedies. Although Ms. Jones rejected his February 18 grievance and 

incorrectly stated that he waived or forfeited his participation in the grievance 

process, Mr. Campbell did not avail himself of a final appeal to the CMO, who might 

have rectified the error and granted his requests. See Woodford v. Ngo, 548 U.S. 81, 

89 (2006) (“Exhaustion gives an agency an opportunity to correct its own mistakes 

with respect to the programs it administers before it is haled into federal court . . . .” 

(internal quotation marks omitted)); see also R., Vol. 2 at 197 (Offender Grievance 

Procedure OP-090124 § VII.A.2 (stating that an “offender may appeal . . . [p]robable 

error committed by the reviewing authority.”)). Nor did he challenge Ms. Jones’ 

imposition of restrictions, which also was appealable. See R., Vol. 2 at 202 (Offender 

Grievance Procedure OP-090124 § IX.A.2) (“If the determination of abuse of the 

process is taken at the first level of review, the action is appealable to the appropriate 

administrative review authority.”). Mr. Campbell failed to avail himself of these 

remedies, and his failure to complete the grievance process demonstrates he did not 

exhaust. See Jernigan, 304 F.3d at 1032. 

Mr. Campbell offers three arguments for excusing his failure to complete the 

grievance process. He first relies on his emergency grievance, arguing that his only 

option was to file the emergency grievance with Ms. McCoy, the CMO, and once she 

rejected it, he exhausted his remedies because any appeal to her would have been 
7 

futile and redundant. But there is no futility exception to the exhaustion rule, see

Booth v. Churner, 532 U.S. 731, 741 n.6 (2001), and there would have been no 

redundancy if Mr. Campbell had submitted his emergency grievance to the reviewing 

authority, Ms. Jones—the CHSA, rather than the CMO, as provided by OP-090124 

§ VIII.A, see R., Vol. 2 at 200 (“[Emergency g]rievances may be submitted directly 

to the reviewing authority . . . .”).2

 Under those circumstances, an unfavorable 

response would have been appealable to the CMO pursuant to OP-090124 

§ VIII.B-C. Mr. Campbell’s failure to follow these procedural directives does not 

excuse him from them. See Little, 607 F.3d at 1249 (“[A]n inmate may only exhaust 

by properly following all of the steps laid out in the prison system’s grievance 

procedure.” (emphasis added)). 

Second, Mr. Campbell recites a portion of the magistrate judge’s report and 

recommendation, which concluded there was an inference that defendants thwarted 

his efforts to exhaust the final appeal stage of the administrative process. The 

magistrate judge reasoned that Ms. Jones gave an invalid reason for denying the 

February 18 grievance, refused to allow Mr. Campbell to resubmit it, stated he 

waived or forfeited his participation in the grievance process, and threatened to 

 2

 There is an option for filing an emergency grievance directly with the ARA 

or CMO “[i]f the complaint involves the reviewing authority and is of a sensitive 

nature.” R., Vol. 2 at 200 (Offender Grievance Process OP-090124 § VIII.A.4). 

Although Mr. Campbell references this provision, he offers no developed argument 

as to how he invoked or satisfied it, nor does he cite anything in the record indicating 

that he previously raised such an argument. See Garrett v. Selby Connor Maddux & 

Janer, 425 F.3d 836, 840 (10th Cir. 2005) (“[T]he court cannot take on the 

responsibility of serving as the [pro se] litigant’s attorney in constructing arguments 

and searching the record.”). 
8 

impose grievance restrictions (in fact, she eventually did impose restrictions). 

Mr. Campbell seems to suggest this all rendered the final appeal stage unavailable 

under our decisions in Little and Tuckel v. Grover, 660 F.3d 1249 (10th Cir. 2011), 

but we disagree. 

As the district court correctly explained, Mr. Campbell’s failure to pursue a 

final appeal with the CMO distinguishes his case from Little, where the inmate took 

the final appeal to the ARA and the ARA incorrectly rejected it, 607 F.3d at 1248, 

1250. Under those circumstances, we stated that “[b]ecause the ARA exceeded its 

authority when it rejected [the] grievance appeal, it rendered that final step of 

exhaustion unavailable.” Id. at 1250. Mr. Campbell, however, never appealed to the 

CMO. Nor is his case similar to Tuckel, where a prison official apparently 

recommended that several inmates assault the plaintiff in retaliation for filing a 

grievance. 660 F.3d at 1251. We recognized that “when a prison official inhibits an 

inmate from utilizing an administrative process through threats or intimidation, that 

process can no longer be said to be ‘available.’” Id. at 1252-53. But here, there is no 

evidence that officials attempted to threaten, intimidate, or confuse Mr. Campbell. 

Ms. Jones gave an invalid reason for denying a grievance and incorrectly attempted 

to exclude him from the administrative process. These decisions were appealable, 

and nothing prevented Mr. Campbell from challenging them. 

Finally, Mr. Campbell offers a hybrid of his first two arguments, asserting his 

remedies were unavailable under Ross v. Blake, 136 S. Ct. 1850, 1859-60 (2016), and 

his emergency grievance to the CMO satisfied the final step of ODOC’s grievance 
9 

policy. But he offers nothing to satisfy Ross’s criteria for deeming remedies 

unavailable, and we decline to interpret Ms. Jones’ mistakes as an affirmative effort 

to thwart the process. 

As for Mr. Campbell’s emergency grievance, it should have been filed with the 

CHSA. See R., Vol. 2 at 200 (Offender Grievance Process OP-090124 § VIII.A). To 

the extent he insists that ODOC’s process “allows an alternative final step which 

provides (either or) an appeal to the Administrative Review Authority or to the Chief 

Medical Official,” Aplt. Br. at 3T, that option exists in the normal, non-emergency 

grievance procedure, see R., Vol. 2 at 197 (Offender Grievance Process OP-090124 

§ VII.B (“The offender may make a final appeal to the administrative review 

authority or chief medical officer, whichever is appropriate . . . .”)). 

Mr. Campbell has filed a motion to supplement the record to support his 

assertion that an emergency grievance submitted directly to the CMO concludes the 

administrative process. He seeks to supplement the record with an excerpt of 

ODOC’s updated emergency grievance process and another inmate’s grievance 

material, specifically a letter from ODOC’s medical services manager. These 

materials fail to establish that Mr. Campbell’s emergency grievance exhausted his 

remedies. The updated ODOC policy was inapplicable at the time Mr. Campbell 

filed his grievance, and the excerpt of that policy is substantively identical to the 

governing provisions here. Moreover, the letter states that the inmate filed a 

“Misconduct/Grievance Appeal to Administrative Review Authority” concerning a 

complaint raised in an “emergency grievance.” Mot. to Supp. at 4. The appeal was 
10 

returned unanswered in part because “[t]he medical administrative reviewing 

authority’s ruling is final.” Id. Mr. Campbell says this proves he was not required to 

appeal the CMO’s ruling, but this letter does not indicate whether the inmate’s 

grievance was denied as a non-emergency, as Mr. Campbell’s was, or whether it was 

resolved on some other basis. The letter is not probative of Mr. Campbell’s situation 

and does not demonstrate that he exhausted his administrative remedies. 

IV 

 The judgment of the district court is affirmed. The motion to supplement the 

record is granted. Mr. Campbell’s motion to proceed on appeal without prepayment 

of costs and fees is granted. The relevant statute, 28 U.S.C. § 1915(a)(1), does not 

permit litigants to avoid payment of filing and docketing fees, only prepayment of 

those fees. Although we have disposed of this matter on the merits, Mr. Campbell 

remains obligated to pay all filing and docketing fees. He is directed to continue 

making partial payments until all fees have been paid in full. 

Entered for the Court 

Paul J. Kelly, Jr. 

Circuit Judge